AS TO THE ADMISSIBILITY OF
Application No. 32094/96 Application No. 32568/96
by E.L.H. by P.B.H.
against the United Kingdom against the United Kingdom
___________________
The European Commission of Human Rights (Second Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, 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 applications introduced on 15 April 1996 and
2 January 1996 by E.L.H. and P.B.H. against the United Kingdom and
registered on 2 July 1996 and 8 August 1996 under file No. 32094/96 and
No. 32568/96;
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 applicants, who are married, are British nationals born in
1963 and 1959 respectively. The second applicant is serving a term of
twenty years' imprisonment in H.M. Prison Swaleside. The applicants are
represented by Mr. Simon Creighton, a solicitor of the Prisoners Advice
Service.
The facts of the case, as they have been submitted by the
applicants, may be summarised as follows:
On 20 February 1989 the second applicant was sentenced to eight
years' imprisonment. On 2 February 1992 he absconded from prison
custody.
On 27 October 1992 he married the first applicant, who was
receiving fertility treatment as she had difficulty in conceiving. In
March 1994 the first applicant underwent exploratory surgery and it was
discovered that she required major surgery on her fallopian tube. This
surgery was scheduled for January 1995.
On 9 August 1994 the second applicant was rearrested and returned
to prison custody.
On 30 August 1994 the first applicant applied to the Home
Secretary for the right to have conjugal visits. The application was
rejected by the Director General of the Prison Service on
12 October 1994.
In January 1995 the first applicant was admitted to hospital.
However, the consultant gynaecologist decided not to operate on her,
as the surgery which had been planned would have increased the prospect
of conception for only a short period of time and the two applicants
were not in a position to attempt conception as the second applicant
was in prison.
On 17 February 1995 the second applicant was given a second
sentence of 14 years' imprisonment to run consecutively with the first.
On 4 October 1995 the second sentence was reduced to twelve years, to
be served consecutively.
On 4 January 1996 the second applicant submitted an application
for conjugal visits. The first applicant submitted a further
application on 9 January 1996 and asked her Member of Parliament for
support.
On 19 January 1996 the Prison Governor refused the second
applicant's application on the basis that there was no statutory
provision for such visits to take place.
On 23 January 1996 the second applicant also asked for his M.P.'s
support.
On 4 February 1996 the Director General of the Prison Service
informed the applicants' M.P. that conjugal visits were not allowed in
England and Wales.
COMPLAINTS
1. The applicants complain under Articles 3, 8 and 12 of the
Convention, taken on their own and in conjunction with Article 14 of
the Convention, that they are not allowed conjugal visits in order to
procreate. Although artificial insemination is not ruled out in the
case of prisoners, the applicants have submitted evidence to the effect
that the Catholic Church of which both are followers does not approve
of this option.
2. The applicants also complain under Article 13 of the Convention
that they do not have an effective remedy for the alleged violation of
their Convention rights.
THE LAW
1. The Commission, having regard to the connection between the two
cases and the similar nature of the issues raised, considers it
appropriate to order the joinder of the present applications under
Rule 35 of its Rules of Procedure.
2. The applicants complain under Articles 8 and 12 (Art. 8, 12) of
the Convention that they are not allowed conjugal visits in prison.
Article 8 (Art. 8) of the Convention, insofar as relevant,
provides as follows:
"1. Everyone has the right to respect for his ... family life
...
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."
Furthermore, Article 12 (Art. 12) of the Convention provides as
follows:
"Men and women of marriageable age have the right to marry and
to found a family, according to the national laws governing the
exercise of this right."
The Commission considers that it is particularly important for
prisoners to keep and develop family ties in order to be able better
to cope with life in prison and prepare for their return to the
community. It, therefore, notes with sympathy the reform movements in
several European countries to improve prison conditions by facilitating
"conjugal visits".
However, the Commission recalls its case-law to the effect that,
although the refusal of such visits constitutes an interference with
the right to respect for one's family life under Article 8 (Art. 8) of
the Convention, for the present time it must be regarded as justified
for the prevention of disorder or crime under the second paragraph of
that provision. Moreover, according to the same case-law, an
interference with family life which is justified under Article 8 para.
2 (Art. 8-2) of the Convention cannot at the same time constitute a
violation of Article 12 (Art. 12) (No. 17142/90, Dec. 10.7.91,
unpublished).
The Commission considers that the same conclusions should be
reached under Articles 8 and 12 (Art. 8, 12) of the Convention in the
present case, despite the exceptional circumstances invoked by the
applicants. Thus, although the first applicant requires major surgery
to be able to conceive and this surgery can only be performed when the
couple are in a position to attempt conception, domestic law, as the
applicants themselves accept, does not exclude artificial insemination
in the case of prisoners. Moreover, although the applicants claim that
the artificial insemination option is not open to them because they are
practising Catholics, the Commission recalls that Article 9 (Art. 9)
of the Convention, which protects the freedom to manifest one's
religious beliefs, does not guarantee the right to be exempted from
rules which apply generally and neutrally, such as rules prohibiting
"conjugal visits" in prisons (cf., mutatis mutandis, No. 10358/83, Dec.
15.12.83, D.R. 37 p. 142).
The Commission, therefore, considers that no appearance of a
violation of Articles 8 and 12 (Art. 8, 12) of the Convention is
disclosed. As a result, this part of the application is manifestly ill-
founded and must be rejected as inadmissible, in accordance with
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicants complain that the refusal to allow conjugal visits
in prison amounts to treatment prohibited under Article 3 (Art. 3) of
the Convention.
However, the Commission recalls that, in order to fall within the
scope of this provision, the matter complained of must attain a minimum
level of severity (No. 10142/82, Dec. 8.7.85, D.R. 42, p. 86). This has
not occurred in the circumstances of the present case. It follows that
this part of the application is manifestly ill-founded and must be
rejected as inadmissible, in accordance with Article 27 para. 3
(Art. 27-3) of the Convention.
4. The applicants complain of discrimination in the enjoyment of
their rights under Articles 3, 8 and 12 (Art. 3, 8, 12) of the
Convention contrary to Article 14 (Art. 14) thereof.
Insofar as the applicants can be deemed to complain that they
have less possibilities to procreate than persons who are not detained,
the Commission considers that the difference in treatment in question
is the direct result of a lawfully imposed prison sentence and, as a
result, has a reasonable and objective justification. Moreover, it has
not been shown that there exists no reasonable proportionality between
the means employed and the aim sought to be realised, since the
applicants have the possibility to apply for artificial insemination
facilities.
Insofar as the applicants can be deemed to complain that they are
de facto discriminated against because of their religious beliefs, the
Commission finds that it is within a State's margin of appreciation for
its authorities to consider that the particularly exacting demands of
discipline and order in prison require that no distinctions should be
made between prisoners insofar as "conjugal visits" are concerned. As
a result, the difference in treatment between prisoners whose religious
beliefs allow for artificial insemination and those whose religious
beliefs do not has an objective and reasonable justification and no
lack of reasonable proportionality has been established.
It follows that no appearance of a violation of Article 14 of the
Convention taken in conjunction with Articles 3, 8 and 12
(Art. 14+3+8+12) is disclosed. This part of the application is,
therefore, manifestly ill-founded and must be rejected as inadmissible,
in accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
5. The applicants complain under Article 13 (Art. 13) of the
Convention that they do not have an effective remedy for the alleged
violation of their Convention rights.
The Commission recalls that, in accordance with its case-law, the
right to an effective remedy before a national authority under
Article 13 (Art. 13) of the Convention can only be claimed by someone
who has an "arguable claim" to be a victim of a violation of a right
recognised by the Convention (No. 10427/83, Dec. 12.5.86, D.R. 47, p.
85). However, this is not the applicants' case.
It follows that no appearance of a violation of Article 13
(Art. 13) of the Convention is disclosed. This part of the application
is, therefore, manifestly ill-founded and must be rejected as
inadmissible, in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission,
DECIDES TO JOIN APPLICATIONS N° 32094/96 AND N° 32568/96;
by a majority,
DECLARES THE APPLICATIONS INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy