AS TO THE ADMISSIBILITY OF
Application No. 27847/95
by Brian HOSIE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 23 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, 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 application introduced on 23 March 1995 by
Brian Hosie against the United Kingdom and registered on 11 July 1995
under file No. 27847/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
30 January 1997;
Having deliberated;
Decides as follows:
THE FACTS
The applicant, born in 1950, is a British national residing in
Perth. He is currently serving a sentence of life imprisonment in
Scotland. Before the Commission he is represented by
Mr Douglas Thomson, a solicitor practising in Fife.
At the time of introducing his application the applicant was
detained at Perth Prison. The present application concerns the
conditions of his detention at Shotts Prison, where he was previously
detained.
The facts of the case, as submitted by the parties, may be
summarised as follows.
From September 1987 until October 1989 the applicant was detained
at Shotts Prison, A Hall.
Following a serious disturbance at the prison on
7 September 1988, in the course of which the prisoners took over the
Textile Workshop and caused £50,000 worth of damage, the prison
authorities placed the prison on a lockdown regime in order to regain
total control of the prison. This involved a removal of normal
association for the prisoners, who were confined to their cells. Food
was delivered to cells instead of the communal dining room, and
attendance of prisoners at work, recreation and education activities
ceased. The prison authorities aimed to restore the prison to normal
by instituting a system of progressively more relaxed regimes in the
different halls. The prisoners posing the least problems were placed
in C Hall, where life was returned to normal as quickly as possible,
with limited association introduced almost immediately. D Hall had a
regime not quite as advanced as C, but was also being returned to
normal, while in B Hall there was a more restricted regime for those
prisoners about whose intents and behaviour there were still
considerable doubts. A Hall was used to house those prisoners who had
been involved in the disruption or who were suspected of incitement or
other subversive activity. Within A Hall there was a sub-division into
three levels or "flats" with slightly differing degrees of restriction.
Prisoners in A Hall were transferred between the flats and eventually
to another more progressive hall as their behaviour or attitude were
seen as improving.
The applicant had been detained in the bottom flat in A Hall
prior to the events of 7 September 1988 and the imposition of the
lockdown regime thereafter.
The applicant was not, however, considered to be involved in the
disruption or in any incitement or subversive activities. He was
therefore suitable to be upgraded to the more relaxed regime in B Hall.
Attempts appear to have been made by the prison authorities to
persuade him to move to B Hall, but they were declined. In particular,
it appears from a minute dated 22 May 1989 by Mr Smith, a prison
officer, to the Governor of Shotts Prison that, between 20 October 1988
and 22 May 1989, the prison authorities offered the applicant the
chance of transferring to B Hall on 8 occasions, but the applicant
declined all of those offers. He continued to do so throughout the
whole period he was detained at Shotts Prison.
As regards exercise, the lack of suitable facilities for
exercising prisoners in small groups resulted in the authorities
offering indoor exercise in the wing corridor (an area of 29 by
2 metres) in groups of 2-3 per day to prisoners in A Hall. As the
regime was relaxed, exercise was given in groups of 3-5 prisoners. No
complete prison records remain of the exercise periods afforded to the
applicant.
The applicant submits that during the lockdown period he was not
allowed to have exercise for more than thirty minutes a day.
A minute for the period 1 January to 22 May 1989 shows that the
applicant was offered inside exercise daily but refused this on
14 occasions. Outside exercise recommenced for A Hall on 22 May 1989
and was offered on a daily basis.
During the lockdown period, food was delivered at meal times to
the prisoners in their cells. The applicant contends that the food was
barely fit for human consumption. The Government admit that there were
initially many complaints about food arriving cold, but heated food
trolleys arrived in late 1988 and the vast majority of complaints
ceased.
On 21 July 1989, as a result of assaults on staff and
disturbances, special arrangements as to the delivery of the food in
A Hall were introduced. The applicant alleges that officers were
obliged to wear protective clothing when entering the cell areas. In
order to receive food, the prisoners had to face the bars of their cell
and place their hands on the bars whilst prison officers entered in
riot gear and placed the food in the cell. Considering these
requirements humiliating, the applicant refused to comply with them.
Consequently, between 21 and 24 July 1989, the applicant did not
receive any food at all. The special food delivery regime ceased on
24 July 1989.
Throughout the whole period of the restricted regime, visiting
time was reduced from one hour to thirty minutes and was limited to two
visits per month.
According to the prison records, the applicant only received
three visits during the whole of this period and this appears to have
been his choice.
During the lockdown period two prisoners in B Hall committed
suicide.
The applicant contends that these events as well as the
restrictions to which he was submitted, caused him insomnia,
irritability, anger and "preoccupation with his own mortality".
In January 1991 the applicant submitted a claim for damages to
Hamilton Sheriff Court in respect of the physical and mental discomfort
which he allegedly suffered as a result of the 'intolerable conditions'
to which he was subjected during the lockdown period between
7 September 1988 and 2 October 1989.
On 9 January 1995 the Sheriff dismissed the applicant's claim.
Insofar as the applicant was claiming damages for the deterioration of
his physical condition, the judge pointed out that the applicant had
not suffered any physical injury, but only claimed to have suffered
discomfort. The judge also noted that the applicant refused on a number
of occasions to comply with the prison officers' requirements as to the
delivery of food in the cell; therefore, between 21 and 24 July 1989,
the prison authorities were not in a position to deliver food to the
applicant. The judge considered further that the applicant had not only
failed to provide any particulars of his mental condition, but had also
failed to show that the effects upon his physical and mental condition
of restricted exercise, food and visits were serious. As to the effects
of the suicides of some prisoners on his mental condition, the judge
noted that there was no proof that the applicant was suffering from a
psychiatric illness.
In a psychiatric report dated 5 April 1993, Dr. J.J. Shaw, after
an interview with the applicant on 29 March 1993, stated that,
following the period of segregation at Shotts Prison, the applicant had
indeed suffered some minor psychological symptoms, but these were
short-lived and had had no longstanding effect on his personality
development or psychological wellbeing.
COMPLAINTS
The applicant complains that the system of lockdown to which he
was subjected constitutes inhuman treatment and is therefore contrary
to Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 23 March 1995 and registered
on 11 July 1995.
On 16 October 1996 the Commission decided to communicate the
application to the respondent Government.
The Government's written observations were submitted on
30 January 1997, after an extension of the time-limit fixed for that
purpose. The applicant did not submit observations.
THE LAW
The applicant complains that the system of lockdown to which he
was subjected constitutes inhuman treatment and is therefore contrary
to 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 Government submit in the first place that the applicant has
failed to exhaust domestic remedies as required by Article 26 (Art. 26)
of the Convention, since he did not avail himself of the offer to move
to another hall. Furthermore, he did not use the internal channels of
complaint such as a complaint to the prison Governor, the Visiting
Committee, a visiting officer of the Secretary of State or the
Secretary of State himself. The Government submit that the applicant
could have made a complaint to the Parliamentary Commissioner for
Administration. He could also have taken judicial review proceedings
against the Secretary of State or the prison authorities or have
appealed against the 9 January 1995 decision to the Court of Session
and from there to the House of Lords. However, the Government consider
that such an appeal might have been unsuccessful, having regard to
certain aspects of the applicant's case.
As regards the merits, the Government admit that during the
period from 7 September 1988 until 22 May 1989, although the applicant
was entitled to one hour's exercise per day in the open air in clement
weather, the prison authorities failed to give him his full
entitlement. They point out that this was due to logistical problems,
as prisoners could only safely be exercised two or three at a time, and
the daily routine of mealtimes etc. allowed only a period of
approximately two hours in the morning and the same in the afternoon
when the exercise could take place. Consequently, the main outside yard
could be used to exercise only between eight and twelve persons per
day. The Government point out also that there were occasions when the
applicant did not avail himself of the opportunity for such exercise
as was offered to him in that period.
The Commission recalls that Article 26 (Art. 26) of the
Convention requires only 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 remedies, do not in reality offer any chance of redressing
the alleged breach. It is furthermore established that the burden of
proving the existence of available and sufficient domestic remedies
lies upon the State invoking the rule (cf. Eur. Court HR, De Jong,
Baljet and Van den Brink v. the Netherlands judgment of 22 May 1984,
Series A no. 77, p. 18, para. 36, and Nos. 14116/88 and 14117/88,
Sargin and Yagci v. Turkey, Dec. 11.5.89, D.R. 61, pp. 250, 262).
The Commission further points out that where there is a choice
of various domestic remedies open to the applicant, Article 26
(Art. 26) must be applied to reflect the practical realities of his
position in order to ensure the effective protection of the rights
guaranteed (No. 9118/80, Dec. 9.3.83, D.R. 32, p. 159). In addition,
an applicant who has used a remedy which is apparently effective and
sufficient cannot be required to try others,, which are available, but
probably ineffective (No. 9248/81, Dec. 10.10.83, D.R. 34, p. 78; No.
12609/86, Dec. 8.3.90, D.R. 64, p.84).
The Commission takes the view that in this case the applicant,
by submitting a claim for damages to Hamilton Sheriff Court in respect
of his alleged physical and mental discomfort, has satisfied the
exhaustion of domestic remedies condition according to the generally
recognised rules of international law.
As regards the Government's submission that the applicant failed
to accept offers of a move to another hall, the Commission considers
that this cannot be relied on as a ground of non-exhaustion, although
it is relevant to the substance of the applicant's complaint.
In these circumstances, the Commission finds that the application
cannot be declared inadmissible for non-exhaustion of domestic remedies
under Article 27 para. 3 (Art. 27-3) of the Convention.
The Commission must therefore examine the substance of the
applicant's complaint regarding the conditions of his detention during
the lockdown regime.
The Commission recalls in the first place the interpretation of
the concept of inhuman or degrading treatment by both the Commission
and the European Court of Human Rights.
According to the established case-law of the Court, "ill-
treatment must attain a minimum level of severity if it is to fall
within the scope of Article 3 (Art. 3)" and "the assessment of this
minimum is, in the nature of things, relative ..." (Eur. Court HR,
Ireland v. the United Kingdom judgment of 18 January 1978, Series A no.
25, p. 65, para. 162). 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 HR, Tyrer v. the United Kingdom
judgment of 25 April 1978, Series A no. 26, p. 15, para. 30).
The Commission also recalls in this context 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, the stringency of the measure, its duration, the
objective pursued and its effects on the person concerned. The removal
of a prisoner from association with fellow inmates for security,
disciplinary or protective reasons does not normally amount to inhuman
treatment or punishment (cf. e.g. Bouajila v. Switzerland, Comm. Report
1.7.93, paras. 102-104; No. 20560/92, Dec. 30.8.94, unpublished).
The Commission recalls that it found that the lockdown regime
introduced in September 1988 at Shotts Prison did not amount to
treatment contrary to Article 3 (Art. 3) of the Convention in respect
of the applicant in that case (see No. 18942/91, Dec. 6.4.93,
unpublished), whose conditions did not substantially differ from the
ones at issue in the present case.
In the present case, the Commission notes that between September
1988 and October 1989 the applicant was held in a lockdown regime,
being subjected to restrictive measures, as were all other inmates of
A Hall.
The Commission finds that the lockdown regime as described above
was of a stringent nature. It notes however that it was necessitated
by a series of disruptions in the prison, culminating in a riot on
7 September 1988 which posed grave problems of disorder and disruption
and which resurfaced in July 1989. The prison instituted a progressive
system aimed at bringing the prison back to a normal routine and the
regime in A Hall improved during the applicant's detention there. The
Government have placed weight on the fact that the applicant refused
offers to move to other less restrictive parts of the prison. The
applicant has not denied this. The Commission has examined the report
by the psychologist who saw the applicant after his detention under the
lockdown conditions. There is no indication that the restrictions to
which the applicant was subject have caused serious damage to his
physical or mental health. As regards the period during which the
applicant did not receive any food (between 21 and 24 July 1989), the
Commission notes, on the one hand, that the applicant does not allege
that he was not offered food at all and, on the other hand, that this
situation was created by the applicant himself, as he refused to comply
with the requirements as to the delivery of food. Furthermore, the
Commission considers that the above-mentioned measures were necessary
following an incident in which prisoners had assaulted prison officers.
The Commission also notes that the applicant's complaints about
the conditions are weakened by his own refusal to accept a move away
from them. Furthermore, it observes that the applicant continued to
receive visits and a limited daily exercise period with other prisoners
and was not denied contact with other inmates.
Having regard to the above elements, the Commission finds that
the conditions which the applicant experienced did not attain the level
of ill-treatment proscribed by Article 3 (Art. 3) of the Convention.
It follows that the application must be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy