AS TO THE ADMISSIBILITY OF
Application No. 17142/90
by G. and R.S.
against the United Kingdom
The European Commission of Human Rights sitting in private on
10 July 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
A.S. GÖZÜBÜYÜK
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. L. LOUCAIDES
J.C. GEUS
M.P. PELLONPÄÄ
B. MARXER
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 24 October 1989
by G. and R.S. against the United Kingdom and registered
on 11 September 1990 under file No. 17142/90;
- i -
17142/90
Having regard to:
- reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the Commission's decision of 9 November 1990 to bring the
application to the notice of the respondent Government
and invite them to submit written observations on its
admissibility and merits;
- the information submitted by the respondent Government on
29 January 1991 and the reply submitted by the applicants
on 14 March 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicants, who are married, are British citizens born in
1946 and 1962 and resident in London. The first applicant is serving
a term of seventeen years' imprisonment in H.M. Prison Full Sutton. The
applicants are represented by John Wadham of the National Council for
Civil Liberties. The facts as submitted by the applicants may be
summarised as follows.
On 20 November 1987, the first applicant was sentenced to
sixteen years' imprisonment for an offence of conspiracy to import
drugs. He was ordered to serve a further year of imprisonment on
default of paying a fine of £40,000, plus the £19,000 towards the cost
of his trial.
According to current practice, the applicant's earliest
release date on full remission will be March 1998.
The first applicant met the second applicant in 1983 and they
later began to live together. Prior to the first applicant's arrest,
the applicants had taken steps to seek medical advice in respect of
their difficulties in having children. After the first applicant's
arrest, the applicants were married in the chapel of Full Sutton
Prison on 27 April 1988.
At the time of lodging the application the second applicant
was aged 27 and will be 36 by the time of her husband's release, when
there will be greater difficulty in conceiving and greater risks in
having a child.
On 1 August 1988, the first applicant requested conjugal
visits and permission to give sperm for the purpose of artificially
inseminating his wife. He offered to pay any expenses incurred in the
process.
By letter from the Governor dated 31 January 1989, the first
applicant was informed that the Home Office had refused his request.
On 9 March 1989, the applicant applied for legal aid to commence
judicial review proceedings against the Home Office. On 6 April 1989,
his application was refused by the Law Society. His appeal to the Area
Committee was dismissed on 17 May 1989 on the ground that it would be
an unreasonable use of public funds to finance the proceedings.
On 10 May 1989, the applicant's M.P., who had taken up his
case, received a reply from the Under Secretary of State which stated
that, after careful consideration, it was decided that there were no
exceptional circumstances which justified an exception being made in
the first applicant's case.
On 25 May 1989 and 27 June 1989, the first applicant wrote to
the Home Secretary inquiring inter alia as to what constituted
"exceptional circumstances". In a reply, dated 31 July 1989, he was
informed that there were no set criteria, each case being considered
on its merits.
Since the communication of this application to the respondent
Government, permission has been given for the artificial insemination
arrangements to be made.
COMPLAINTS
The applicants complained that they had been deprived of their
right to found a family contrary to Article 12 of the Convention.
They originally submitted that the refusal to allow artificial
insemination extinguished the substance of their rights and that the
fact of imprisonment cannot deprive applicants of their rights in this
respect.
The applicants also originally complained that the denial of
artificial insemination facilities and the refusal of conjugal visits
were contrary to Article 8 of the Convention.
Finally the applicants contended that they had no effective
domestic remedy for these Convention claims, contrary to Article 13 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 24 October 1989 and
registered on 11 September 1990. After a preliminary examination of
the case by the Rapporteur, the Commission decided on 9 November 1990
to give notice of the application to the respondent Government,
pursuant to Rule 42 para. 2 (b) of its Rules of Procedure (former
version), and to invite the parties to submit their written
observations on the admissibility and merits of the application.
After an extension of the time limit fixed for the submission of those
observations, the Government informed the Commission on 29 January
1991 that the Home Secretary had considered the application and, in
the light of information now put forward by the applicants, he had
decided to permit arrangements for artificial insemination to be made
in this case, the application being thereby resolved. The applicants,
also after an extension of a fixed time limit, informed the Commission
on 14 March 1991 that, whilst they welcomed the Government's offer,
the application would not be withdrawn as they wanted a declaration
that the original refusal of arrangements had been in breach of their
Convention rights and damages for that refusal. They also wished to
pursue their claim concerning the continued denial of conjugal visits.
THE LAW
1. The applicants complained that the refusal to allow them
conjugal visits in prison constituted an unjustified interference with
their right to respect for family life under Article 8 (Art. 8) of the
Convention and a denial of their right to found a family ensured by
Article 12 (Art. 12) of the Convention. The relevant parts of these
Convention provisions provide as follows:
Article 8 (Art. 8):
"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 ... for the prevention of disorder or crime ..."
Article 12 (Art. 12):
"Men and women of marriageable age have the right to
marry and to found a family, according to the national
law governing the exercise of this right."
However the Commission refers to its constant case-law that,
whilst noting with sympathy the reform movements in several European
countries to improve prison conditions facilitating such visits,
nevertheless for the present time the refusal, although constituting
an interference with the Article 8 (Art. 8) right, is justified for the
prevention of disorder or crime within the meaning of the second
paragraph of Article 8 (Art. 8). 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) (cf.
No. 8166/78, Dec. 3.10.78, D.R. 13 p. 241). 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 applicants also complained of an absence of effective
domestic remedies for their above Convention claims contrary to
Article 13 (Art. 13) of the Convention. Article 13 (Art. 13) of the
Convention provides as follows:
"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."
However, Article 13 (Art. 13) of the Convention 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, para. 52). The Commission has found above that the
applicants' claims about conjugal visits under Articles 8 and 12 (Art.
8, 12) of the Convention are manifestly ill-founded within the meaning
of Article 27 para. 2 (Art. 27-2) of the Convention. In the light of
the reasons upon which that finding is based, the Commission also
considers that the facts of the present case fail to disclose an
"arguable claim" of a violation of these provisions. Consequently the
applicants cannot derive from Article 13 (Art. 13) of the Convention a
right to a remedy for the alleged breaches of Articles 8 and 12 (Art.
8, 12) in respect of the refusal of conjugal visits. 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 applicants complained of a refusal to allow
artificial insemination arrangements for them while the first
applicant was in prison. They again invoked Articles 8, 12 and 13
(Art. 8, 12, 13) of the Convention. Permission for such arrangements
has since been given.
The Commission considers that since permission for the
necessary arrangement has now been given the factual basis of this
part of the application has been resolved, within the meaning of
Article 30 para. 1 (a) (Art. 30-1-a) of the Convention, and that, in the
circumstances it is no longer justified to continue the examination of
this aspect of the case (Article 30 para. 1 (b) (Art. 30-1-b)).
Moreover it finds no reason of a general character concerning respect
for Human Rights as defined in the Convention which requires the
retention of this part of the application (Article 30 para. 1 in fine)
(Art. 30-1).
For these reasons, the Commission, by a majority,
DECLARES INADMISSIBLE that part of the application
concerning conjugal visits and effective remedies
for the refusal of such visits;
DECIDES TO STRIKE OUT the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NORGAARD)
Full & Egal Universal Law Academy