AS TO THE ADMISSIBILITY OF
Application No. 14176/88
by Thomas Michael Joseph RYDER
against the United Kingdom
The European Commission of Human Rights sitting in private on
19 January 1989, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 June 1988
by Thomas Michael Joseph RYDER against the United Kingdom and
registered on 2 September 1988 under file No. 14176/88;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1957. He is
currently serving a sentence of imprisonment in H.M. Prison Durham.
The facts as submitted by the applicant may be summarised as follows.
The applicant was arrested in June 1985 and detained on remand
in connection with drugs offences. On 30 August 1985, the applicant
escaped from custody while appearing in the magistrates court. He was
re-arrested in January 1986 and charged with escape from legal
custody, grievous bodily harm and possession of a fire-arm.
The applicant was subsequently classified as a violent
prisoner likely to escape or be rescued by an armed gang.
On 20 March 1986, the applicant was additionally charged with
an offence of robbery and of demanding money with menaces. On 22 May
1986, the applicant made an unsuccessful attempt to escape, following
which he was charged with assault and threatening to kill.
The applicant was tried in relation to the drugs charge in
October 1986. He was convicted and sentenced to 4 years' imprisonment.
On arrival at H.M. Prison Walton, Liverpool, the applicant was placed
on the "E" list (escape) and given category "A" status (maximum
security). On 11 November 1986, the applicant was moved to H.M.
Prison Strangeways, Manchester.
During November - December 1986, the applicant received two
letters from his solicitor marked "Rule 37 A - Private and
Confidential" on both sides of the envelope. However, these letters
had been opened and read by the prison censor. The applicant
complained to the Acting Governor, who assured him that "Rule 37 A"
correspondence would only be opened if he was present and that once
the inside of the envelope had been inspected, the letter would be
replaced and returned. Despite this assurance, the applicant's mail
in December 1986 was again opened and read. His solicitor however was
assured that letters subject to Rule 37 A would not be censored in
future.
On 17 March 1987, the applicant returned to H.M. Prison
Walton, Liverpool. In April 1987, he received a letter marked "Rule
37 A" which had been opened. The applicant complained to the
Principal Officer who apologised, stated that he had only recently
received Home Office instructions regarding "Rule 37 A" letters and
assured the applicant that mail would not be abused in future.
Later in April 1987, the applicant received a visit from his
solicitor and discovered that a letter sent by his solicitor four days
before and marked "Subject to Rule 37 A", concerning counsel's advice,
had not yet been received by him. The solicitor wrote to the prison
governor enquiring about the letter. The Governor stated that
enquiries would be made to trace the letter.
On 1 May 1987, a prison officer visited the applicant with a
cheque to be signed: he informed the applicant that the letter
accompanying the cheque would be distributed that evening. The
applicant however did not receive the letter until the following
afternoon and the applicant complained to the assistant governor
concerning the delay. The assistant governor said that he would look
into the matter. He also said that enquiries had failed to discover
the missing letter from the solicitor. On 18 May 1987, the applicant
submitted a petition to the Secretary of State regarding the opening
of his correspondence.
On 24 July 1987, a prison officer attempted to give the
applicant a letter from his solicitor marked "Rule 37 A" which had
been opened. The applicant refused to accept the letter and applied
to see the Governor. On 27 July 1987, the applicant had an interview
with the Acting Governor, who stated that she would look into the
matter. The applicant now requested that he be given the letter and
was told that it would be returned to him after the Governor had
spoken to the official censor. The applicant was informed later that
afternoon that the letter had gone missing. He gave the Governor his
solicitor's address in order that a copy of the letter could be
forwarded. The applicant petitioned the Secretary of State on 29 July
1987 regarding this matter. The applicant petitioned again on 19
August 1987 concerning further letters from his solicitor having been
opened on 1, 4 and 15 August 1987. The Governor had apologised to the
applicant concerning the letter of 1 August 1987, explaining that a
novice censor had opened it by mistake.
On 29 September 1987, the Secretary of State replied to the
petitions of 18 May and 19 August but it appears that the reply did
not reach the applicant at that time.
On 27 November 1987, the Secretary of State replied to the
applicant's petition of 29 July 1987, regretting that the letter
handed to the applicant on 24 July 1987 had been accidentally opened.
It was stated that the letter had not been read and that when it went
missing, his solicitor had been immediately contacted in order to
request a second copy. The applicant was also informed that the
letter of 15 August 1987 had been opened since his name had not been
visible.
On 29 February 1988, the applicant, now in H.M. Prison Durham,
was handed the reply dated 29 September 1987 to his petitions of 18
May and 19 August 1987. In this reply, the Secretary of State
regretted that the letter of 4 August 1987 had been opened but
commented that this was understandable given the absence of any "Rule
37 A" indication on the envelope. The loss of the solicitor's letter
was regretted and reference made to a previous apology made in writing
to the applicant's solicitors.
COMPLAINTS
The applicant complains that because of his classification as
category "A" he was prevented from receiving normal visits and
interviewing potential witnesses for the defence. He also complains
that the move to H.M. Prison Strangeways made it difficult for him to
see his solicitors. He complains that as a result he was unable to
prepare any of his cases properly. He invokes Article 6 paras. 1 and
3 (b) and (d) of the Convention in this respect.
The applicant also complains of continuous interference with
his correspondence with his solicitor, which was opened in his
absence. Despite his complaints, the applicant submits that this
censorship continued and invokes Articles 8, 10 and 13 of the
Convention.
THE LAW
1. The applicant has complained of interference with his correspondence
with his solicitor and has invoked Article 8 (Art. 8) of the Convention. While
the applicant has also invoked Article 10 (Art. 10) of the Convention, the
Commission recalls that where interference is alleged in the communication of
information by correspondence Article 8 (Art. 8) is the lex specialis and no
separate issue arises under Article 10 (Art. 10). The Commission will
therefore examine the applicant's complaint under Article 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."
Insofar as the applicant complains of interference with
letters which he brought to the attention of the Secretary of State in
his petition of 29 July 1987, the Commission is not required to decide
whether or not the facts alleged by the applicant disclose any
appearance of a violation of this provision, as Article 26 (Art. 26) of the
Convention provides that the Commission "may only deal with the matter
... within a period of six months from the date on which the final
decision was taken".
In the present case the reply of the Secretary of State which
was the final decision regarding the subject matter of this petition,
was given on 27 November 1987, whereas the application was submitted
to the Commission on 24 June 1988, that is, more than six months after
the date of this decision. Furthermore, an examination of the case
does not disclose the existence of any special circumstances which
might have interrupted or suspended the running of the six months
period.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
As regards the other alleged interferences, the Commission
recalls that on 1 May 1987 a letter allegedly went missing and that
letters which arrived on 1 August, 4 August and 15 August 1987 from
his solicitor had been opened. In the reply to the applicant's
petitions of 18 May 1987 and 19 August 1987, the Secretary of State
referred to the written apology to the applicant's solicitors
concerning the missing letter and explained that the letter of
4 August 1987 had not been marked Rule 37 A. The reply to the
applicant's other petitions had already explained that the letter of
15 August 1987 had not been addressed to the applicant and had been
opened to discover to whom it was sent. As regards the letter of
1 August 1987, the Commission recalls that the Governor had apologised
to the applicant for its opening and explained that a novice censor
had been responsible.
The Commission's previous case-law indicates that the opening
of a prisoner's correspondence with his solicitor may raise issues
under Article 8 (Art. 8) of the Convention. In the case of McComb v. the
United Kingdom (No. 10621/83, Dec. 11.3.85, to be published in D.R.),
the Commission declared admissible the complaints of a prisoner
regarding the censorship of his correspondence with his solicitor.
The Commission also recalls that pursuant to a friendly settlement in
that case, the United Kingdom Government agreed to issue instruction
that such correspondence would not be opened, save in the presence of
the prisoner concerned.
The Commission notes that these instructions appear to have
been implemented in the prisons in which the applicant was detained
but that various incidents occurred in which letters from his
solicitor were nonetheless opened. The Commission further notes that
the applicant was able to complain to the Governor and the Secretary
of State concerning these incidents and received various apologies and
explanations, which the Commission finds to be reasonable in the
circumstances of this case. In the absence of any evidence of a
deliberate flouting or disregard of the Secretary of State's
instructions, the Commission finds that the applicant can no longer
claim to be a victim of a violation of Article 8 (Art. 8) of the Convention.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also invoked Article 13 (Art. 13) of the Convention
in relation to his correspondence complaints.
Article 13 (Art. 13) of the Convention provides:
"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."
The Commission finds however, in light of previous case-law,
that a petition to the Secretary of State constitutes an effective
remedy where, as in this case, the applicant complains of the
misapplication of the Secretary of State's own directives (see e.g.
Eur. Court H.R., Silver judgment of 25 March 1983, Series A no. 61,
para. 116, p. 43). The Commission accordingly finds that this
complaint discloses no appearance of a violation of Article 13 (Art. 13) of the
Convention.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant has also complained of being hampered in the
preparation of his cases as a result of his classification and of the
location of his prison. He invokes Article 6 paras. 1 and 3 (b) and
(d) (Art. 6-1, 6-3-b, 6-3-d) of the Convention.
The Commission has examined these complaints as they have been
submitted by the applicant. The Commission however finds that these
complaints, expressed in general and unspecific terms, have been
unsubstantiated and consequently disclose no appearance of a violation
of the Convention. 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.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)