AS TO THE ADMISSIBILITY OF
Application No. 34486/97
by Michael McHugh
against Ireland
The European Commission of Human Rights (First Chamber) sitting
in private on 16 April 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 6 September 1993
by Michael McHugh against Ireland and registered on 14 January 1997
under file No. 34486/97;
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 applicant is an Irish national, born in 1966 and currently
serving a sentence in Portlaoise prison, Ireland. The facts of the
case, as submitted by the applicant, can be summarised as follows.
A. Particular circumstances of the case
The applicant was arrested on 27 June 1985. He alleges that he
was severely beaten on arrest and later in the police station, that a
policeman tried to murder him later in hospital and that he was framed
and arrested on the basis of false charges.
He was tried in 1985 by the Special Criminal Court, convicted of
capital murder (of a policeman) and sentenced to death in December
1985. The applicant did not, at that stage, apply to the Special
Criminal Court for leave to appeal to the Court of Criminal Appeal. His
sentence was later commuted by the President to 40 years imprisonment
to be served without remission.
The applicant had non-contact visits with both of his parents in
July 1985 and December 1986. His father died in December 1988 and the
applicant was refused permission to attend the funeral. His mother is
72 years old and lives in Crossmaglen, Co. Armagh. The round trip
between Crossmaglen and Portlaoise prison is 225 miles approximately.
He last saw his mother in December 1989 (during an open visit in
Portlaoise) when she was driven down by a cousin. The applicant claims
that his mother is now unfit to make this journey and she has submitted
a medical certificate dated 28 August 1996 from Crossmaglen Health
Centre which states that "she is unfit to cope with making the long
journey to Portlaoise to visit her son in prison".
On 22 March 1991 the applicant's representative applied to the
Special Criminal Court for a Certificate of Leave to Appeal against
conviction. The application was refused although legal aid was granted
for it.
It appears that the applicant (with the assistance of his
solicitor) subsequently attempted to renew an application for leave to
appeal and to obtain documents he considered relevant in this respect.
By letter dated 30 June 1992 the applicant's solicitor confirmed that
the Criminal Appeals Office had indicated that the transcript of the
trial proceedings should be available by the end of July that year, at
which stage they would be ready to set in train the appeal process.
Letters from the applicant's solicitor dated 22 September 1994 and
13 July 1995 demonstrate continuing attempts made by that solicitor to
obtain access to documentation (relating to the applicant's trial) from
the Chief State Solicitor. The applicant claims that the failure by the
authorities to give his solicitors access to certain trial documents
has frustrated these latter appeal attempts.
In order to obtain an escorted visit to see his mother, the
applicant applied to the High Court for leave to issue an order of
mandamus by way of judicial review. On 12 February 1996 the High Court
refused his application, stating that "temporary release for this
purpose is entirely a matter within the discretion of the Minister and
this Court has no jurisdiction to intervene". The applicant appealed
to the Supreme Court which court, on 20 May 1996, requested the
attendance of the applicant. The applicant was brought under escort in
June 1996 before the Supreme Court to be heard by that court. On
7 June 1996 the Supreme Court rejected the appeal.
Having reviewed Section 2 of the Criminal Justice Act 1960 and
Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167
of 1960), the Supreme Court found that the applicant's application
touched the question of temporary release and that no distinction fell
to be made between temporary release (in the generally understood
meaning of that term) and any form of release under escort - both were
considered to be exclusively a matter within the Minister's discretion.
B. Relevant domestic law and practice
(a) Temporary release
Section 2 of the Criminal Justice Act 1960 provides that the
Minister may make rules providing for temporary release (subject to
such conditions, if any, as may be imposed in each particular case) of
persons serving a sentence of penal servitude or imprisonment. The
rules made under section 2 are contained in the Prisoners (Temporary
Release) Rules, 1960; S.I. No. 167 of 1960. Rule 3(1) thereof provides:
"The Governor or other officer in charge for the time being of
a prison may, subject to the directions of the Minister and
subject to any exceptions which may be specified in the
directions of the Minister, release temporarily for a specified
period a person serving a sentence of penal servitude or
imprisonment in that prison."
The Sentence Review Group is a non-statutory body established in
1989 in order to advise the Minister for Justice in relation to the
administration of long term sentences. In considering whether to
recommend temporary release, or other concessions, the Sentence Review
Group has to have regard to the interests of the public as a whole and
to the interests of the prisoner and therefore applies the following
criteria:
i. Would a release constitute a threat to the community?
ii. Is it reasonable to grant temporary release at this
particular stage in view of the nature of the crime and the
offender's previous criminal record?
iii. Does the offender merit temporary release having regard to
his behaviour while in prison?
iv. Are there any compassionate grounds which warrant special
consideration?
(b) Section 63 of the Prison Rules 1947
The rules for the government of prisons are contained in the
Prison Rules 1947 ("the 1947 Rules") and were enacted by the Minister
for Justice by way of Statutory Instrument 320 of 1947. Rule 63 is
entitled "Prisoners' letters" and it reads as follows:
"Every letter to or from a prisoner shall be read by the
Governor, or other responsible officer deputed by the Governor,
and initialled by him; and if the contents are objectionable, it
shall not be forwarded, or the objectionable part shall be
erased, according to discretion. The Governor shall use his
discretion in communicating to or withholding from a
prisoner at any time the contents of any letter addressed
to the prisoner, but shall note in his journal every case
in which he thinks it proper to withhold a letter which,
according to the rules, might be communicated to or written
by a prisoner."
(c) Relevant constitutional rights
Article 40(3) of the Constitution reads as follows:
"1. The State guarantees in its laws to respect, and, as far as
practicable, by its laws to defend and vindicate the personal
rights of the citizen.
2. The State shall, in particular, by its laws protect as best
it may from unjust attack and, in the case of injustice done,
vindicate the life, person, good name, and property rights of
every citizen."
The domestic courts recognise the existence of further personal
rights which are protected by Article 40(3) of the Constitution either
as rights ancillary or corollary to those expressly mentioned in
Article 40(3)(2) or as latent in the expression "personal rights" in
Article 40(3)(1). One of these recognised "unenumerated rights" is the
right to communicate (Attorney General v. Paperlink Limited [1984] ILRM
343 and McKenna v. An Taoiseach, High Court, 8 June 1992) and it may
be that a right of a prisoner to communicate with a member of his/her
family is also to be derived from Article 40(3) (the State (Murray) v.
Governor of Limerick prison, High Court, 2 August 1978). In addition,
certain other rights relating to the family can also be derived from
Article 40(3) (Murray v. Ireland [1985] IR 532).
The domestic courts also recognise that an inevitable practical
and legal consequence of imprisonment is that a great many of the
constitutional personal rights of the prisoner are for the period of
imprisonment suspended or placed in abeyance (The State (Richardson)
v. the Governor of Mountjoy Prison [1980] ILRM 82). Accordingly, (and
apart from breaches of constitutional rights of such a nature as to
affect the lawfulness of detention for which a habeas corpus action
would be appropriate), the domestic courts recognise the prisoner's
right of access to court to complain of an interference with
constitutional rights which is not necessary to give effect to the
sentence of the court (The State (Fagan) v. Governor of Mountjoy
Prison, High Court, 6 March 1978).
(d) Relevant case-law regarding prisoners' correspondence
The High Court in the Kearney case (Kearney v. the Minister for
Justice [1986] IR 116), considered, inter alia, the constitutionality
of Rule 63 of the 1947 Rules further to a plenary summons seeking,
inter alia, a declaration that Rule 63 of the 1947 Rules was
unconstitutional. The plaintiff's principal objection was that his
letters to and from his solicitor were read by the Governor or his
deputy - he submitted that the power to interfere with his right of
communication with his solicitor, relatives and friends could only be
interfered with in exceptional circumstances (for example, proven
security issues) and in such cases he should be present when letters
were opened for inspection.
The High Court held that the constitutional right to communicate
could be regulated by law and that prisoners retained only those
constitutionally protected rights which did not depend on a person's
liberty and which were compatible "with the reasonable requirements of
the place in which he is imprisoned". The High Court found that the
evidence in the case established that the restriction on the right to
communicate which involved reading all letters to and from prisoners
(including legal correspondence) could reasonably be justified on the
grounds of security and was not therefore unconstitutional. In reaching
this conclusion the High Court noted that in the case of legal
correspondence addressed to and from the prison, "staff are instructed
to read the letter only to the extent necessary to ensure that it
relates to the prisoner's legal affairs. Staff are expected to treat
as confidential all information obtained as a result of the operation
of Rule 63". Moreover, the High Court considered the plaintiff's
suggestion that a prisoner should be present every time his
correspondence was opened as "unreasonably burdensome".
As regards the Golder and Silver judgments of the European Court
of Human Rights to which the High Court was referred "in passing"
(Eur. Court HR, Golder v. the United Kingdom judgment of
21 February 1975, Series A no. 18 and Silver and Others v. the United
Kingdom judgment of 25 March 1983, Series A no. 61), the High Court
noted that the facts of those cases were very different from those of
the Kearney case. The High Court noted, however, that both cases made
clear that some interference with prisoner's correspondence was
permitted according to the ordinary and reasonable requirements of
imprisonment. Since, however, it was established that certain
correspondence had not been passed on to the prisoner, in breach of
Rule 63, the plaintiff was awarded £25 nominal damages against the
State in that latter respect. The plaintiff did not pursue an appeal
to the Supreme Court.
The Supreme Court in the case of Hutchinson v. the Department of
Justice and the Governor of Mountjoy Prison (a judicial review
application) was faced with allegations of suppression and censorship
of mail in circumstances where no indication had been given by the
Governor of what mail had been so suppressed or censored and why. The
court pointed out in its judgment of 16 October 1992 that a prisoner
serving a sentence must not be incommunicado and had a general right,
subject to prison discipline, to communicate with persons outside the
prison. It followed that the prisoner was entitled, at least, to
information about what letters had been withheld and why. Accordingly,
the plaintiff was accorded liberty to apply for an order of mandamus
directing the Governor to inform the plaintiff of any letter which had
not been transmitted or censored and to supply short reasons for the
same.
The Supreme Court in the case of Holland v. the Minister for
Justice and Others also considered a judicial review application for
an order of mandamus based on allegations that a letter written in
February 1993 by the plaintiff on behalf of a fellow prisoner had been
returned to him by the prison authorities. The court, in its judgment
of 9 July 1993, referred to both the above-cited Kearney judgment of
the High Court and its own judgment (cited above) in the Hutchinson
case and went on to point out that the justification for Rule 63 of the
1947 Rules was to ensure that nothing was done to undermine the
security or good discipline of the prison through correspondence.
However, the plaintiff was given leave to apply to the High Court for
an order of mandamus requesting reasons for the failure to transmit the
letter. That application was subsequently rejected by the High Court
on 28 January 1994 and, on appeal, by the Supreme Court on 13 May 1994
because the relevant letter had, by then, been transmitted by the
prison authorities. No further point was taken as regards the delay in
transmission of that letter by either court.
COMPLAINTS
1. The applicant complains about the refusal of the authorities to
allow him an escorted visit to Dundalk to see his mother whom he has
not seen since December 1989 and who is unfit to make the journey to
his prison. He invokes Articles 8 and 11 of the Convention.
He also submits that other prisoners in the same position as he
obtain temporary leave and escorted visits and that he is, contrary to
Article 14 of the Convention in conjunction with Article 8, being
singled out for unfair treatment in this respect.
The applicant also complains about interference with his
correspondence by the prison authorities.
2. The applicant also complains that a "tribunal" complying with the
requirements of Article 6 para. 1 of the Convention should have decided
the question of his visit entitlements. He complains that he had no
legal aid for his application in this respect.
3. The applicant alleges that he was beaten on arrest in June 1985
and immediately thereafter. He also claims that a policeman tried to
murder him in hospital when recovering from the injuries the police had
allegedly inflicted on him during his arrest.
He also complains that his trial was a farce, that fabricated
statements formed the basis of his conviction, that his lawyers were
part of the conspiracy and that he was framed. He considers that the
Special Criminal Court is not a real court.
THE LAW
1. The applicant complains about the refusal by the authorities to
allow him an escorted visit outside of the prison to see his mother.
He invokes Articles 8 and 11 (Art. 8, 11) of the Convention. The
Commission considers that this complaint falls to be considered under
Article 8 (Art. 8) of the Convention.
The applicant submits that his mother is too ill to make the long
trip to Portlaoise, that he has only served approximately 13 years of
a 40 year sentence, that he last saw his mother in December 1989 and
that his mother is already 72 years old. He would accept an escorted
visit (even in handcuffs) to a large military barracks in Dundalk which
is just before the border with Northern Ireland and which is not too
far from where his mother lives. This would respond to the authorities'
alleged concern about Irish policemen crossing the border into Northern
Ireland. He points out that he was brought before the Supreme Court in
Dublin in June 1996 from Portlaoise (which is approximately half the
distance of the trip to Dundalk) and that there is no justification for
not bringing him approximately 60 miles further to Dundalk to see his
mother.
He also complains under Article 14 (Art. 14) of the Convention
that other prisoners in the same position as him have obtained the
necessary facilities to allow such visits and even longer periods of
unescorted temporary release.
He further complains about interference with his correspondence,
without invoking in particular any Article of the Convention. Many of
the applicant's letters to the Commission, together with certain copy
letters from his solicitors which he has submitted, are stamped
"Censored". The Commission considers that this complaint also falls to
be considered under Article 8 (Art. 8) of the Convention, which
Article, insofar as relevant, reads as follows:
"1. Everyone has the right to respect for his private and family
life, ... 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 ... for the
prevention of disorder or crime, ... or for the protection of the
rights and freedoms of others."
Article 14 (Art. 14), insofar as relevant, reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
..."
The Commission is not required to decide whether or not the facts
alleged by the applicant, in respect of these complaints, disclose any
appearance of a violation of the Convention as, under Article 26
(Art. 26) of the Convention, it may only deal with a matter after all
domestic remedies have been exhausted according to the generally
recognised rules of international law.
In this respect, the Commission notes that the Supreme Court
considered that the applicant's request for an escorted visit fell
within the scope of Section 2 of the Criminal Justice Act 1960 and
Rule 3 of the Prisoners (Temporary Release) Rules 1960 (S.I. No. 167
of 1960) and further that a refusal of such a visit was exclusively a
matter within the Minister's discretion. The Commission further notes
that all correspondence to and from a prisoner must be opened and read
pursuant to section 63 of the 1947 Rules and that the suppression and
censorship of correspondence is also foreseen by that Rule.
Accordingly, insofar as the applicant challenges the refusal of
temporary release and the interference with his correspondence falling
within the scope of the relevant applicable domestic rules, the
Commission recalls that in a legal system which provides constitutional
protection for fundamental rights, it is incumbent on the aggrieved
individual to test the extent of that protection and, in a common law
system, to allow the domestic courts to develop those rights by way of
interpretation (No. 18670/91, Dec. 1.12.93, unpublished). In this
respect, it is recalled that a declaratory action before the High
Court, with a possibility of an appeal to the Supreme Court,
constitutes the most appropriate method under Irish law of seeking to
assert and vindicate constitutional rights (No. 15141/89, Dec. 15.2.90,
D.R. 64, p. 203; No. 23156/94, Dec. 31.8.94, unpublished and
No. 28154/95, Dec. 2.7.97, unpublished).
In the present case, the Commission notes that the applicant has
taken no declaratory action by way of Plenary Summons joining the
Attorney General claiming that the refusal of escorted visits in his
circumstances and that interferences with his correspondence pursuant
to Rule 63 of the 1947 Rules violate his constitutional rights.
As to the effectiveness of the proposed constitutional action as
regards interference with correspondence, the Commission notes the
judgment of the High Court in the Kearney case. However, the Commission
also notes that the Supreme Court did not pronounce on the issue in
that case and has not yet ruled on the constitutionality of Rule 63 of
the 1947 Rules. It is further noted that the Kearney judgment was
handed down more than 12 years ago. Furthermore, the Hutchinson and
Holland judgments of the Supreme Court (16 October 1992 and
9 July 1993, respectively) were proceedings for judicial review.
Accordingly, any observations of the Supreme Court on the
constitutionality of Rule 63 of the 1947 Rules in those judicial review
cases would have been obiter dicta and would not, therefore, be binding
on any subsequent Supreme Court before which the constitutionality of
Rule 63 was raised in properly constituted constitutional proceedings.
Moreover, while the Irish courts cannot directly apply the
judgments of the European Court of Human Rights since the Convention
has not been incorporated into domestic law, the Commission notes the
reference to certain case-law of that Court in the High Court judgment
in the Kearney case. In this respect, the Commission recalls that since
that judgment there have been further developments in the jurisprudence
under the Convention and refers, in particular, to the Campbell
judgment decided six years after the Kearney case (Eur. Court HR,
Campbell v. the United Kingdom judgment, loc. cit.) and specifically
to paragraphs 44-54 thereof.
Insofar as the applicant alleges interferences with his
correspondence which were not authorised by Rule 63 of the 1947 Rules,
the Commission observes that judicial review proceedings were available
to him to challenge such interferences and, insofar as reasons were not
given for stopping or censoring correspondence, to obtain such reasons
(Hutchinson v. the Department of Justice and the Governor of Mountjoy
Prison, loc. cit.). The applicant has not issued any such proceedings.
It is true that in carrying out their obligations under Rule 63
of the 1947 Rules, the prison authorities have access to prisoners'
legal correspondence. However, in view of the purpose of constitutional
proceedings and since the nature of those proceedings would lead to
submissions of a mainly legal character, the Commission does not
consider that the fact that the authorities have access to his legal
correspondence would render a constitutional action ineffective. As to
whether the judicial review proceedings could be considered ineffective
for the same reason, the Commission notes the successful judicial
review proceedings of Mr. Holland outlined above (judgment of the
Supreme Court of 9 July 1993) in a case where the authorities similarly
had access to Mr. Holland's legal correspondence (No. 24827/94,
Dec.14.4.98, not yet published).
Moreover, the Commission does not consider that there exist any
special circumstances in the present case which would, in accordance
with the generally recognised rules of international law, absolve the
applicant from the obligation to exhaust a domestic remedy
(No. 14556/89, Dec. 5.3.91, D.R. 69, p. 261). The present case can be
distinguished from the O'Reilly case against Ireland (No. 24196/94,
Dec. 22.1.96, D.R. 84-A, p. 72), the O'Reilly case concerning a
complaint under Article 5 para. 5 (Art. 5-5) and a choice which Mrs
O'Reilly "reasonably" made between different domestic remedies open to
her.
Accordingly, the Commission considers that the applicant's
complaints as regards the refusal of an escorted visit outside of the
prison to see his mother together with his complaint in relation to
interferences with his correspondence are inadmissible pursuant to
Article 27 para. 3 (Art. 27-3) of the Convention on grounds of non-
exhaustion of domestic remedies as required by Article 26 (Art. 26) of
the Convention.
2. The applicant also complains that a "tribunal" complying with the
requirements of Article 6 para. 1 (Art. 6-1) of the Convention should
have decided the question of his visit entitlements. He also submits
that he should have had legal aid for applications as regards visit
entitlements.
Article 6 para. 1 (Art. 6-1), insofar as relevant, reads as
follows:
"1. In the determination of his civil rights ... or 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. ..."
The Commission considers, as did the domestic court, that the
applicant's request for an escorted visit amounted to a request for
temporary release.
However, the Commission recalls its constant case-law according
to which proceedings concerning the execution of a sentence imposed by
a competent court, including proceedings on the grant of conditional
release, do not fall within the scope of Article 6 para. 1 (Art. 6-1)
of the Convention. They concern neither the determination of "a
criminal charge" nor the determination of "civil rights and
obligations" within the meaning of this provision (see, for example,
No. 16266/90, Dec. 7.5.90, D.R. 65, p. 337). Even assuming that for the
purposes of this complaint the applicant's allegations as regards the
Special Criminal Court (made in relation to the proceedings before that
court and outlined below) can be considered in this context, bearing
in mind the date of his trial and of the introduction of his
application, the Commission considers that the applicant has not
demonstrated that the Special Criminal Court constituted anything other
than a competent court for these purposes (No. 8299/78, Dec. 10.10.80,
D.R. 22, p. 51 and No. 12839/87, Dec. 9.12.88, D.R. 59, p. 212).
The Commission therefore finds that these complaints do not fall
within the ambit of Article 6 para. 1 (Art. 6-1) and they must be
rejected, pursuant to Article 27 para. 2 (Art. 27-2) of the Convention,
as incompatible ratione materiae with the provisions of the Convention.
3. The applicant alleges that he was beaten on arrest in June 1985
and immediately thereafter. He alleges that a policeman tried to murder
him in hospital when recovering from those injuries earlier inflicted
by the police. The applicant also makes a number of vague and general
allegations as regards the conduct of his trial - he submits that his
trial was a farce, that fabricated statements formed the basis of his
conviction, that his lawyers were part of the conspiracy and that he
was framed. He also submits that the Special Criminal Court before
which he was convicted is "not a real court" and that it was set up to
"smash republicanism".
The Commission notes that the applicant did not apply for leave
to appeal against his conviction until 1991. It further notes that the
applicant has submitted material to the Commission relating to the
consideration of further appeal proceedings after 1991 and that the
applicant submits that he has not been able to pursue a further appeal
application due to the authorities' failure to provide access to
certain relevant documents.
However, even assuming that the applicant had no effective
domestic remedy to exhaust as regards the alleged assaults and his
trial, the Commission considers that these complaints have been
introduced outside the six-month time-limit set down by Article 26
(Art. 26) of the Convention since the applicant refers to the assaults
and his trial as having taken place in 1985 and his application was not
introduced before the Commission until September 1993.
Accordingly, the Commission considers that these complaints are
inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the
Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy