AS TO THE ADMISSIBILITY OF
Application No. 20035/92
by Daniel RAPHAIE
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 December 1993, the following members being present:
MM. C.A. NØRGAARD, President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
D. SVÁBY
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 26 January 1992
by Daniel RAPHAIE against the United Kingdom and registered on 25 May
1992 under file No. 20035/92;
Having regard to :
- reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
17 December 1992 and the observations in reply submitted by the
applicant on 29 April 1993;
- the parties's further pre-hearing observations submitted on 18
November 1993;
- the hearing of the parties on 2 December 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in Iran in 1960, who at
the time of lodging his application was detained in H.M. Prison
Wayland, Norfolk. He is represented before the Commission by Messrs.
Budd Martin Burrett, Solicitors practising in Chelmsford, Essex.
The facts of the present case, as submitted by the parties, may
be summarised as follows:
A. The particular circumstances of the case
On 12 October 1988 the applicant was arrested and remanded in
custody at H.M. Prison Wormwood Scrubs. He was charged with supplying
heroin and handling stolen goods. He was detained in Wormwood Scrubs
until 5 December 1988, when he was released on bail. Some eight months
later, on 24 August 1989, he was convicted and remanded in custody at
H.M. Prison Brixton. On 1 September 1989 he was sentenced to five
year's imprisonment on the charge of supplying heroin and nine months'
imprisonment on various handling charges, to be served concurrently.
He was transferred from Brixton to H.M. Prison Wandsworth six days
later, on 7 September 1989, and remained there for about three months,
until his transfer to a training prison on 11 December 1989.
The application arises out of the conditions of detention which
the applicant experienced at the three prisons: Wormwood Scrubs,
Brixton and Wandsworth. The applicant describes these conditions as
follows:
In Wormwood Scrubs Prison:
a. He was confined to his cell approximately 23 hours a day.
b. The cell was overcrowded. Although it was designed for one
person only, he had to share his cell with one or two inmates.
c. There was no integral sanitation in the cell. He had to use a
chamber-pot in the presence of other inmates and vice-versa. The
chamber-pot had no cover and therefore the cell had a strong
odour. He had to eat in his cell. At various stages of the day,
prisoners were unlocked from their cells for some 5-10 minutes
in order to empty and clean their chamber-pots and to fill their
washing bowls.
In Brixton Prison he experienced similar conditions, and in particular:
a. He was held in 'F' wing, the psychiatric wing, with no reason
being given.
b. The cell was 2.1m x 3.1m (6.5²), and 2.7m high.
c. The emptying of the cell chamber-pot and the washing of plates
and cutlery were performed at the same time. Consequently the
applicant had to take his eating utensils to the toilet with him
whilst cleaning out his chamber-pot.
In Wandsworth Prison he experienced similar conditions, and in
particular:
a. His cell was 2.1m x 3.9m (8.2m²), and 2.4m high.
b. Cockroaches, rats and cats were present in the prison.
c. He was permitted only some 45 minutes daily exercise.
On 30 March 1991 the applicant wrote a letter to the Secretary
of State together with a "fact sheet". In this "fact sheet", he made
certain of the above general complaints about conditions at Wormwood
Scrubs, Brixton and Wandsworth Prisons. He also made complaints about
a few specific incidents which he claimed occurred at the three
prisons. As he received no reply, he sent two reminders to the
Secretary of State on 8 April and 30 April 1991, respectively. Finally,
on 21 June 1991 the applicant lodged a formal complaint with H.M.
Prison Service, enclosing the "fact sheet".
On 8 October 1991 the London North Area Manager of the Prison
Service replied to the applicant by commenting on each of the items
raised in his "fact sheet". On 11 December 1991 the applicant lodged
an "appeal" with the Home Secretary against the London North Area
Manager's reply and requested an independent investigation of the
points made in his request of 30 March 1991. The letter was passed to
the London North Area Manager for consideration. On 6 January 1992 the
London North Area Manager replied to the applicant that the complaints
had been fully investigated by way of the requests/complaints system
and it was regretted that the conclusions of the investigation were not
to the applicant's satisfaction.
The factual allegations which the applicant made about his
general conditions of detention were for the most part substantiated
by a report in June 1989 made by the Chief Inspector of Prisons
following his visit to Wandsworth, and by a report in March 1991 made
by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment following their visit to Wandsworth
and Brixton. Since these reports, a programme to refurbish these
prisons and install integral sanitation is well underway.
B. Relevant domestic law and practice
The treatment of convicted prisoners is governed by the Prison
Rules of 1964, as amended, made under the Prison Act 1952. These Rules
are supplemented by Standing Orders and Circular Instructions made by
the Secretary of State which set out the detailed practice to be
followed in applying the Rules.
Accommodation
Section 14 of the Prison Act provides that no cell is to be used
for the confinement of a prisoner unless it is certified by an
inspector that, inter alia, its size, ventilation and fittings are
adequate for health. Prison Rule 23 provides that no cell shall be
used as sleeping accommodation for prisoners unless it has been
certified as suitable under the above Section of the Prison Act. The
certificate also specifies the maximum number of inmates who should be
confined in the cell. However this number may be exceeded with the
permission of the Secretary of State.
Sanitation
Neither the Prison Act nor the Prison Rules make any specific
provision concerning toilets or showers. At the material time, the
cells in Wormwood Scrubs, Brixton and Wandsworth Prisons had no
integral sanitation.
Exercise
Prison Rule 27 para. 1 provides that prisoners not engaged in
outdoor work, or detained in an open prison, must be given exercise in
the open air for not less than one hour in all each day, but indoor
physical training may be given instead. However in special
circumstances that period may be reduced to a minimum of 30 minutes
each day.
Remedies available to prisoners
Prisoners with grievances about the place of their detention or
its conditions have various remedies available to them. They may
complain to the Governor or the Board of Visitors within the prison
both of whom have a statutory duty to consider speedily requests and
complaints made to them. At the relevant time, prisoners could also
petition the Secretary of State directly or enlist the aid of their
Member of Parliament.
In appropriate cases, prisoners may also seek legal redress in
the United Kingdom courts. In particular an action in tort for breach
of the duty of care owed to prisoners might lie in a case where prison
conditions are shown to be intolerable. Prisoners are entitled to
obtain advice from independent lawyers. Free legal aid is available for
litigation, subject to the legal aid authorities being satisfied as to
the applicant's means and the merits of his case. An applicant wishing
to initiate legal proceedings enjoys a period of either three or six
years after the date of the matters complained of to commence domestic
legal action.
COMPLAINTS
The applicant complains under Article 3 of the Convention of
inhuman and degrading treatment by virtue of the prison conditions he
experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth.
The applicant also complains that he had no effective remedy under
English law and invokes Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 26 January 1992 and registered
on 25 May 1992. In his application form the applicant's complaints
were limited to the conditions at Brixton and Wandsworth Prisons,
Article 3 of the Convention being invoked.
After a preliminary examination of the case by the Rapporteur,
the Commission considered the admissibility of the application on 10
September 1992. It decided, pursuant to Rule 48 para. 2 (b) of the
Rules of Procedure, to give notice of the application to the respondent
Government and to invite the parties to submit their written
observations on admissibility and merits. The Commission granted the
applicant free legal aid on 11 December 1992.
The Government's observations were submitted on 17 December 1992.
The applicant replied on 29 April 1993 after two extensions of the
time-limit fixed for this purpose. In his reply, the applicant
abandoned certain of his original complaints concerning specific
incidents in Brixton and Wandsworth, but maintained his grievances
about the general conditions of detention and extended them to include
the conditions at Wormwood Scrubs Prison. At this stage the applicant
also complained under Article 13 of the Convention.
On 6 July 1993 the Commission decided to hold a hearing of the
parties. On 18 November 1993 the parties submitted pre-hearing briefs.
The hearing was held on 3 December 1993. The applicant was represented
by Mr. K. Starmer, Counsel, and Mr. D. Lawton, Solicitor, Messrs. Budd
Martin Burrett. The applicant was also present. The Government were
represented by their Agent, Mr. H. Llewellyn, Mr. J. Eadie, Counsel,
Mr. J. Adutt, legal adviser, Home Office, and Mr. E. Tullett, Prison
Service Administrator.
THE LAW
1. The applicant complains that the conditions of detention which
he experienced in H.M. Prisons Wormwood Scrubs, Brixton and Wandsworth
constituted a violation of Article 3 (Art. 3) of the Convention, for
which he allegedly had no effective domestic remedy, contrary to
Article 13 (Art. 13) of the Convention.
Article 3 (Art. 3) of the Convention provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
Article 13 (Art. 13) of the Convention reads 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."
2. At the heart of the applicant's complaints to the Commission are
three general features concerning the cells in which he was kept:
severe overcrowding, a lack of integral sanitation and many hours of
cellular confinement per day.
The applicant alleges that the prison conditions to which he was
subjected amounted to inhuman and degrading treatment, contrary to
Article 3 (Art. 3) of the Convention. He claims that, in the light of
the special circumstances of his case and unclear domestic law at the
material time, he has complied with the formal requirements of Article
26 (Art. 26) of the Convention concerning exhaustion of domestic
remedies and the introduction of an application to the Commission
within six months of the final decision in the case.
The Government contend that the applicant has not observed these
requirements of Article 26 (Art. 26) of the Convention. Insofar as the
applicant complains of his general conditions of detention, such as
overcrowding, it is conceded that no effective domestic remedy existed.
The Government submit that, consequently, the six month period referred
to in Article 26 (Art. 26) ran from the date of the events complained
of, that is at the latest from the applicant's transfer from Wandsworth
Prison on 11 December 1989.
Insofar as the applicant made specific complaints about his
treatment, the Government contend that the applicant should have raised
these matters at the material time so that the prison authorities could
have remedied them straight away if well-founded. However, he only
raised these complaints with the prison authorities in March 1991 or
with the Commission in May 1992, when it was too late to deal with
them. The Government consider, therefore, that again the final decision
was effectively the events complained of, in which case the applicant
lodged his application with the Commission out of time.
The Government recognise that the conditions of the applicant's
detention may have been unpleasant and the facilities inadequate.
However, there is no evidence that the applicant genuinely suffered as
a result or that these conditions amounted to the severe kind of ill-
treatment prohibited by Article 3 (Art. 3) of the Convention. They
submit, therefore, that no breach of this provision occurred in the
present case.
3. The Commission must first consider whether the applicant has
satisfied the requirements of Article 26 (Art. 26) of the Convention,
which provides as follows:
"The Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally
recognised rules of international law, and within a period of six
months from the date on which the final decision was taken."
The Commission refers to its constant case-law that the domestic
remedies rule under Article 26 (Art. 26) of the Convention requires the
exhaustion of those remedies that are available and sufficient. To be
effective, a remedy must be capable of remedying directly the situation
of which complaint is made (No. 11660/85, Macedo v. Portugal, Dec.
19.1.89, D.R. 59 p. 85). If there is no effective remedy at the
applicant's disposal, then the six months' period referred to in
Article 26 (Art. 26) runs from the end of the situation of which
complaint is made (No. 8440/78, Dec. 16.7.80, D.R. 21 p. 138, at 147,
and No. 10320/82, Dec. 11.5.83, D.R. 32 p. 303, at 305)
The Commission notes that the complaints which the applicant
maintains before the Commission at this stage in the procedure are
limited to his general conditions of detention in the three prisons in
question. It also notes the Government's concession that the applicant
had no effective remedy at his disposal at the material time for this
type of complaint, neither through the internal prison channels, nor
through civil litigation. The internal complaints channels could not
have provided any remedy to such general problems as overcrowding or
the lack of integral sanitation in cells, and the conditions in which
the applicant was detained were not such as could have been effectively
challenged by way of a civil claim in tort.
In the absence of any effective remedies for the applicant's
complaints, the six month period envisaged by Article 26 (Art. 26) of
the Convention ran from the date on which the situation in question
ended. The Commission notes that the applicant left Wormwood Scrubs
Prison on 5 December 1988. He left Brixton Prison on 7 September 1989
and he left Wandsworth Prison on 11 December 1989. The applicant made
no complaint about his subsequent conditions of detention during his
prison sentence. The situation of which he complained therefore ended,
at the latest, when he was transferred from Wandsworth Prison on 11
December 1989.
In these circumstances, the Commission finds that the six month
period referred to in Article 26 (Art. 26) of the Convention ran from
11 December 1989. However, the application was not lodged with the
Commission until 26 January 1992, more than two years later. It follows
that the applicant has not complied with the six months' rule and that
the application must be rejected pursuant to Article 27 para. 3
(Art. 27-3) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C. A. NØRGAARD)
Full & Egal Universal Law Academy