AS TO THE ADMISSIBILITY OF
Application No. 23956/94
by Michael MCKENNY
against the United Kingdom
The European Commission of Human Rights sitting in private on
28 November 1994, the following members being present:
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 April 1994 by
Michael MCKENNY against the United Kingdom and registered on 25 April
1994 under file No. 23956/94;
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 applicant is an Irish citizen, born in 1927, and currently
serving a prison sentence in Frankland Prison, Durham in England. The
applicant is represented by Ms. Maire Higgins of the Irish Prisoners'
Support Group in London. The applicant has had a previous application
before the Commission, no. 20485/92, declared inadmissible on 1
September 1993.
The facts of the present case, as submitted by the applicant, may
be summarised as follows:
a. Particular circumstances of the case
The applicant was arrested in Ireland on 6 May 1986. He was
tried in the United Kingdom in connection with conspiracy to cause
explosions. He was sentenced to 16 years' imprisonment. The applicant
was classified at that time as a Category A prisoner.
The applicant requested that he serve his sentence of
imprisonment in a prison in Northern Ireland in order to be near to his
family, who, except for one nephew, reside in Ireland and where he had
previously been resident. His transfer would particularly have eased
the difficulty of visiting for his sister-in-law, C.M., who is his
main visitor. His brother J.M. was unable to visit the United Kingdom
because of ill-health. The applicant has also begun to suffer from ill-
health due to a serious liver complaint.
According to the facts submitted in the applicant's previous
application to the Commission, the applicant's request for transfer was
refused by the Home Office on 10 September 1990 and 12 February 1992.
The refusals were based on the fact that the first applicant has no
relatives in Northern Ireland, and on the possibility that if
transferred he would stand to benefit from the more generous remission
rate that applies in Northern Ireland.
In or about February/March 1993, the applicant was down-graded
from Category A to Category B.
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 applicant complains of the refusal to transfer him to a
prison in Northern Ireland. All his family reside in Ireland, save one
nephew, and the cost of travelling to mainland United Kingdom is
prohibitive. The applicant's sister-in law, for example, has to travel
over 1000 miles, find accommodation and transport to the prison which,
if remote and inaccessible, requires the use of taxis. Single visits
are impracticable and so visitors tend to stay over several days
taking "accumulated" visits which are stressful to prisoner and
visitor. Visitors are also discouraged by the experiences suffered by
many relatives of prisoners when arriving in the United Kingdom where
they may be stopped, strip-searched and detained. The applicant's
sister-in-law has been detained while travelling to visit the
applicant. His nephew who has the same name as the applicant is afraid
to visit on the basis of the possible harassment which might result.
The health of the applicant's sister-in-law has recently begun to
deteriorate and she has been obliged to reduce her visits from twice
a year to once per year, with the risk that in the future she will be
unable to visit at all and the applicant will receive no visits from
family whatsoever.
The applicant submits that there is no reasonable justification
for the refusal of transfer: there is plenty of accommodation in
Northern Irish prisons; he is a sixty-seven year old man in failing
health who is not classified as a security risk and if he was
transferred he would not benefit from the different rules of remission
by more than 1-2 months.
The applicant invokes Article 8 of the Convention in respect of
the above.
2. The applicant also complains of discriminatory treatment on the
ground of his status as an Irish Republican prisoner. He submits 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
Republicans. The constant amendment of the applicable transfer criteria
discloses a policy of blanket refusal of transfers for Republicans.
THE LAW
1. The applicant complains of the refusal to transfer him from
mainland United Kingdom to a prison in Northern Ireland to facilitate
visits from his family which, with only one exception, reside in
Ireland. He invokes 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 applicant in No. 20485/92 which related to the refusal of
transfer. 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 applicant has identified an error
of fact in the Commission's decision in his previous application. The
decision states that the applicant was detained as a Category A
prisoner whereas it appears from the material now before the Commission
that from about February/March 1993 he had been classified as Category
B. Since the Commission's decision contains in its reasoning a
reference to the applicant's classification as indicating that security
considerations applied in his case, the Commission accepts that
relevant new information within the meaning of Article 27 para. 1 (b)
(Art. 27-1-b) has arisen. The Commission may therefore proceed to an
examination of the applicant's complaints.
The applicant submits, inter alia, that there is no justification
for refusing to transfer him to Northern Ireland. He submits that there
is adequate room to accommodate prisoners on transfer, that he would
not benefit from any substantial gain in remission and that he poses
no security risk whatsoever. He contends that the previous policy of
refusing to transfer Republican prisoners was punitive in purpose. The
recent policy introduced of transferring prisoners on a temporary basis
demonstrates, it is submitted, the lack of any real security
considerations.
The Commission's case-law indicates however that a prisoner has
no right as such under the Convention to choose the place of his
confinement and the separation of a detained person from his family and
the hardship resulting from it are the inevitable consequences of
detention (see eg. No. 5712/72, Dec. 18.7.74, Collection 46 p. 112).
Only in exceptional circumstances will the detention of a prisoner a
long way from his home or family infringe the requirements of Article
8 (Art. 8) of the Convention (see eg. 7819/77, Dec. 6.5.78, published
in part, D.R. 14 p. 186).
The Commission finds that no sufficiently exceptional
circumstances arise in this case. It notes that the transfer would
render it easier and more convenient for the applicant's visitors who
travel from Ireland. This consideration is however insufficient to
impose what in effect would be a positive obligation on the respondent
Government to effect a transfer from mainland United Kingdom to
Northern Ireland. It has had regard in this context to the wide margin
of appreciation which must be accorded to the domestic authority,
where, as in this case, sensitive issues arise related to the special
situation which obtains in Northern Ireland.
It follows that the applicant's complaints disclose no lack of
respect for his right to family life under Article 8 (Art. 8) of the
Convention and must be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains of discriminatory treatment as 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 applicant's earlier application (No.
20485/92). However since the reasoning in the decision referred
incorrectly to the applicant's security classification in finding that
he could not be considered as being in an analogous position to other
prisoners, it considers that a relevant new fact has been raised and
that the complaint to this extent cannot be rejected under Article 27
para. 1 (b) (Art. 27-1-b) as substantially the same.
The applicant complains that as a Republican prisoner he has 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 would
generally be granted transfers to and from Northern Ireland.
The Commission notes that the applicant has been consistently
refused a transfer despite the apparent lack of any real security risk
posed by him, whereas it appears that non-Republican prisoners, even
those of security risk, have been transferred to Northern Ireland. The
Commission recalls however that the applicant was refused transfer on
the grounds that he had no links with Northern Ireland itself and as
a result of the possible benefit he might thereby obtain from different
remission rules. It is not apparent that the first of these factors was
present in the other cases to which the applicant refers. Further even
though the applicant alleges that there was a blanket refusal policy,
it appears that he concedes that transfers of a small number of
Republican prisoners were made in previous years and that recently a
significant number of Republican prisoners have been transferred on a
temporary basis.
In light of the above, the Commission is not satisfied that the
applicant has substantiated his complaint that he has been refused
transfer on the ground of his status as a Republican prisoner in
circumstances where any other prisoner would have been transferred.
However, even assuming that the applicant has been subject to a
difference of treatment on the basis of his status as a Republican
prisoner, the Commission recalls that whether a difference in treatment
constitutes discrimination in the sense of Article 14 (Art. 14) of the
Convention depends on whether or not there exists an objective and
reasonable justification. This requires that the difference pursues a
legitimate aim and that there is a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised. In this assessment of whether and to what extent differences
in otherwise similar situations justify a different treatment,
Contracting States enjoy a margin of appreciation which will vary
according to the circumstances, subject-matter and background (see eg.
Eur. Court H.R., Lithgow and others judgment of 8 July 1986, Series A
no. 102, pp. 66-67, para. 177).
Having regard to the above, the Commission recalls that the
applicant, a Republican prisoner, was convicted of offences in relation
to conspiracy to cause explosions in the United Kingdom. The
disposition of such prisoners within the prison administration system
raises special and sensitive considerations, given the history of
conflict in Northern Ireland in respect of which the political
situation is subject to continuing and complex pressures. To the extent
therefore that there has been any difference of treatment, the
Commission finds that it falls within the wide margin of appreciation
enjoyed by the domestic authorities.
It follows that this complaint must also be rejected 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)
Full & Egal Universal Law Academy