PARTIAL
AS TO THE ADMISSIBILITY OF
Application No. 16244/90
by Stephen WINDSOR
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 December 1991, the following members being present:
MM.C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
SirBasil HALL
MM.F. MARTINEZ
C.L. ROZAKIS
Mrs.J. LIDDY
MM.L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
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 9 January 1990 by
Stephen WINDSOR against the United Kingdom and registered on 26
February 1990 under file No. 16244/90;
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 a British citizen born in 1952 and currently
serving a prison sentence in H.M. Prison Perth.
The facts of the case as submitted by the applicant may be
summarised as follows.
On 27 November 1985, the applicant was convicted of armed robbery
and sentenced to 20 years imprisonment. His appeal against conviction
was dismissed on 21 November 1986, but his sentence reduced to 14
years.
The applicant introduced application no. 13081/87 before the
Commission on 16 May 1987. His application, which concerned various
complaints concerning his arrest and trial, was declared inadmissible
on 14 December 1988.
The applicant alleges that since he started serving his sentence
his correspondence has been interfered with.
He complains that the following letters were interfered with or
stopped:
Letter no. 1: - a letter dated 19 September 1988 to his Member of
Parliament, Dr. J. Reid, was not posted;
Letter no. 2: - a letter dated 20 September 1988 to Councillor Ms. H.
Graham, a member of the Visiting Committee, was opened and read. The
applicant states that the Governor questioned him about the contents;
Letter no. 3: - a letter dated 23 or 24 October 1988 to Councillor Mrs.
Knighton was opened and read. The applicant alleges that the
certificate of postage issued was fraudulent and the letter not sent.
He was also questioned concerning the contents;
Letter no. 4: - a letter dated 27 or 28 October 1988 to the Chief
Constable of Strathclyde was opened and read. The applicant was
questioned as to the contents which reported a prison officer for
theft. The applicant alleged that he had given a prison officer £6 on
one occasion to buy him a tape from a record shop and three blank tapes
to record music for him on another. He alleged that the prison officer
kept these items and denied that they had been given to him. He later
instituted civil proceedings against the prison officer in the Sheriff
Court. The Sheriff Court dismissed his case on 23 June 1989. The
Sheriff's judgment referred to the fact that the applicant's letter of
28 October 1988 had been intercepted by the prison authorities and an
internal investigation carried out before it was sent on 8 November
1988;
Letter no. 5: - a letter dated 30 December 1988 to Mrs. S. Calvert was
stopped;
Letter no. 6: - a letter dated 4 January 1989 to Mr. R. Burnett, a
solicitor, enclosing Letter no. 5 (above) was stopped;
Letter no. 7: - a letter dated 3 February 1989 to Councillor Murray,
chairman of the Social Work Department and a member of Lord Macaulay's
working party on the penal system, was stopped and the applicant
instructed to rewrite it;
Letter no. 8: - a letter dated 17 June 1989 to Mr. K. French (an
internal prison letter) concerning a civil action against the prison
officer for theft (see Letter No. 4 above) was allegedly not delivered;
Letter no. 9: - a letter dated 13 November 1988 to Mr. R. Jenkinson (a
prisoner at another prison) was stopped without explanation. The
letter contained, inter alia, the sentence "I won't forget this spell
Russ and will repay all debts in full regardless of consequences";
Letter no. 10: - a letter dated 23 January 1989 to Mr. R. Jenkinson was
stopped without explanation. It was later posted after the applicant
had approached the Scottish Home and Health Department (hereafter the
Department) which then directed that it should be allowed;
Letter no. 11: - a letter dated 5 January 1989 to Mrs. S. Calvert was
stopped without explanation. It was posted on 18 January 1989 after
the applicant had sent it to the Department, which directed that it
should be allowed;
Letter no. 12: - a letter dated 4 January 1989 to Councillor Murray did
not arrive. The applicant alleges that a fraudulent certificate of
postage was issued by the prison authorities (since it contained
different handwriting;
Letter no. 13: - a letter dated 24 October 1989 to Mrs. S. Calvert did
not arrive. The applicant alleges a fraudulent certificate of postage
was issued;
Letter no. 14: - a letter of 25 April 1989 to Mr. D. Clater of the
Department was not delivered by the prison authorities;
The applicant also complains that the following letters were
delayed in posting:
Letter no. 15: - a letter of 22 November 1988 to the Chief Constable
of Strathclyde Police was not posted until 24 November 1988;
Letter no. 16: - a letter of 23 November 1988 to a solicitor, Mr. R.
Burnett, was not posted until 28 November 1988;
Letter no. 17: - a letter of 11 November 1988 to Mrs. M. Windsor was
not posted until 14 November 1988;
Letter no. 18: - a letter of 21 November 1988 to Gingerbread (a single
parents' association) was not posted until 24 November 1988;
Letter no. 19: - a letter of 28 November 1988 to Mr. Burnett was not
posted until 31 November 1988.
The applicant has complained of interference with his
correspondence to the Prison Governor, the Visiting Committee and to
the Secretary of State and his various representatives.
On 17 October 1988, the applicant requested to see a Visiting
Sheriff. No visit has as yet taken place.
On 17 July 1988, the applicant requested to see the Visiting
Committee. A meeting took place in July 1989, but the applicant states
that no answer to his correspondence complaints has as yet been
received.
By letter dated 20 November 1989, the Department replied in
respect of the applicant's complaints of letters not arriving at their
destination, that outgoing mail was not recorded and that enquiry
should be made at the Post Office.
By petition dated 28 October 1988, the applicant complained to
the Secretary of State that letter no. 3 (see above) had not been sent
despite postage being paid and a certificate of postage being issued.
In fact, he alleges that it had been opened, and then given by hand to
Mrs. Knighton. He complained of this interference with his mail. He
also complained that the Governor read mail sent to the Visiting
Committee. In petitions dated 19 and 22 December 1988, the applicant
again complained of unreasonable interference with his mail. By letter
dated 13 March 1989, the Department replied that his complaints had
been investigated. It explained that the prison authorities were
authorised to examine prisoners' correspondence to check for prohibited
material. It also stated that the prison authorities could not be held
responsible for mail which went missing in the post and that there was
no statutory requirement to provide prisoners with a proof of postage.
By petition dated 9 January 1989, the applicant complained about
the stopping of letters nos. 5 and 6. By reply dated 13 March 1989,
the Department replied that the applicant had already been informed why
letter no. 5 had been stopped. By reply dated 29 June 1989 the
Department explained that letter no. 6 had been stopped after it had
been opened in the applicant's presence since it contained two letters
which had been written on opposite sides of a single sheet of note
paper and this did not comply with the rules for corresponding with
solicitors on legal proceedings.
By letter dated 2 September 1989, the Department informed the
applicant that letter no. 6 was stopped since it contained two letters
written on the opposite sides of a single sheet of note paper. As this
did not comply with the rules for corresponding with solicitors on
legal proceedings, the letters were returned to be rewritten.
By petitions dated 3 October 1989, the applicant complained of
letters nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9.
By letter dated 15 November 1989, the Department replied as
follows:
Letter no. 1: - that the prison had no knowledge of a letter to
Dr. J. Reid;
Letter no. 2: - that this letter was unsealed and addressed to
Ms. Graham at her home address. Since Ms. Graham had only recently
been appointed, the prison authorities were not aware that she was
member of the Visiting Committee;
Letter no. 3: - that this letter was in fact received by Ms
Knighton unopened;
Letter no. 4: - that there was no evidence to substantiate the
applicant's allegations;
Letter no. 5: - that the applicant had already had explained to
him why this letter was stopped, i.e. it was not on prison paper;
Letter no. 6: - that letters between a solicitor and a client
should not contain correspondence to a third party;
Letters nos. 7 - 9: - that the prison authorities had no
knowledge of these matters;
By letter dated 14 September 1989, the Department stated that it
had no record of letter no. 14.
COMPLAINTS
The applicant complains of interference with his correspondence
by the prison authorities. He also submits that he has no effective
remedy in respect of his complaints. He invokes Articles 8 and 13 of
the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 January 1990 and registered
on 26 February 1990.
On 11 July 1991, the Rapporteur requested the United Kingdom
Government to submit information on the applicant's complaints
concerning interference with his correspondence.
The Government's reply was submitted on 10 September 1990 and 15
April 1991 and the applicant's comments in reply were submitted on 27
November, 30 December 1990 and 9 May 1991.
THE LAW
1. The applicant complains of interference with his correspondence
by the prison authorities and 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."
In its opinion in the case of Silver and Others v. the United
Kingdom (No. 5947/72, Comm. Report 11.10.80) the Commission stated as
follows:
"... a prisoner has the same right as a person at liberty
to respect for his correspondence, the ordinary and
reasonable requirements of imprisonment being of relevance
in assessing the justification for any interference with
that right under the exceptions permitted by Article 8
para. 2 (Art. 8-2) ...
The Commission considers, therefore, that the right under
Article 8 para. 1 (Art. 8-1) to respect for correspondence
envisages a free flow of such communications, subject only
to the
limitations prescribed by Article 8 para. 2 (Art. 8-2).
The Commission concludes that the censorship of prisoners'
correspondence by prison authorities, in principle,
constitutes an interference with the right of prisoners to
respect for their correspondence under Article 8 para. 1
(Art. 8-1)." (paras. 269 - 271)
As regards Article 8 para. 2 (Art. 8-2), the Commission recalled
in that case that the interference had to be in accordance with the
law, which entailed three requirements - that the interference in
question must have some basis in domestic law and that the law must be
adequately accessible and foreseeable (Eur. Court H.R., Sunday Times
judgment of 26 April 1979, Series A No. 30, pp. 30-31, paras. 47-49).
In respect of the condition "necessary in a democratic society" the
Commission recalled that restrictions imposed on a prisoner's right to
respect for correspondence had to be necessary and proportionate to
meet a legitimate governmental aim. Thus a balance had to be struck
between the need to rehabilitate a prisoner and the interest of public
order and security (Silver and Others Report, loc. cit., paras.
286-290).
The opinion of the Commission was not substantially contested by
the respondent Government before the European Court of Human Rights,
which confirmed most of the Commission's conclusions (Eur. Court H.R.,
Silver and Others judgment of 25 March 1983, Series A, No. 61, pp.
32-40, paras. 83-104). The Court also applied in its judgment the
general principles underlying the phrase "necessary in a democratic
society", including inter alia, the principle that to be compatible
with the Convention the interference must correspond to a "pressing
social need" and be "proportionate to the legitimate aim pursued"
(loc.cit., pp. 37-38, para. 97).
The case of Silver concerned almost exclusively complaints of the
stopping of letters. As regards the opening of letters, without
stopping, the case-law of the Commission and Court establishes that the
supervision of prisoners' correspondence, while being an interference
with the right to respect for correspondence, is in general justified
under the provisions of Article 8 para. 2 (Art. 8-2) for the prevention
of disorder and crime (Silver and Others Report, loc. cit., paras. 423
- 426). In addition, the delay in the posting of a letter while the
authorities contacted the applicant's representative was found in the
case of McCallum v. the United Kingdom (No. 9511/81, Comm. Report
4.5.89) to be an interference justified under Article 8 para. 2
(Art. 8-2) as being for the protection of the rights and freedoms of
others. Similarly, in Silver (loc. cit., paras. 423-426) the Commission
found that a three week delay in the posting of a letter while it was
referred to the Secretary of State did not constitute a violation of
Article 8 (Art. 8) of the Convention.
The Commission has examined the applicant's complaints in light
of the principles and case-law set out above.
Letter no. 1
The applicant alleges that this letter to his Member of
Parliament was not sent. By reply dated 15 November 1989 to a
petition, the Department stated that it had no knowledge of this
matter. The Government submits that the records indicate that the
applicant corresponded regularly with Members of Parliament and that
there was no restriction imposed on this correspondence. It suggests
that if the letter did not arrive, it must have gone astray in the
post.
The Commission finds no indication on the facts of this case that
this letter was stopped, or interfered with by the prison authorities.
It follows that this complaint discloses no appearance of a
violation of Article 8 (Art. 8) of the Convention and that it must be
dismissed as manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
Letter no. 2
The applicant complains that this letter dated 20 September 1988
to Councillor Ms Graham was opened and read. By reply dated 15
November 1989 to one of the applicant's petitions, the Department
explained that the letter had been addressed to Ms. Graham at her home
address and that since she had been recently appointed to the Visiting
Committee, the prison officer had been unaware that it was to a member
of the Visiting Committee.
The Commission notes that the letter which was sent to
Ms. Graham was opened inadvertently and that generally letters to
members of the Visiting Committee are unopened. In these circumstances
the Commission therefore finds no indication of a violation of Article
8 (Art. 8) of the Convention and dismisses the complaint as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
Letter no. 3
The applicant complains that this letter dated 24 October 1988
to Councillor Mrs. Knighton was not sent. The Department in its letter
of 15 November 1989 informed the applicant that Mrs. Knighton had
received the letter and the Government have provided a letter from Mrs.
Knighton confirming this fact. The Commission therefore finds that
this complaint is unsubstantiated and must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
Letter no. 4
The applicant complains of the delay in the sending of his letter
of 27 or 28 October 1988 to the Chief Constable of Strathclyde. The
letter contained allegations that a prison officer had stolen property
belonging to the applicant. It was not sent until 8 November 1988. He
complained of this delay in his petition of 3 October 1989 and in its
reply of 15 November 1989, the Department stated that the complaint was
unsubstantiated. However, the Government have explained that following
a request by the local police, the prison authorities accompany each
letter from a prisoner with their comments on the prisoner's
allegations.
The Commission notes that this in effect entails the prison
authorities investigating a complaint before passing on a letter to the
police and appears to impose a "de facto" prior ventilation rule. The
Commission considers that this complaint raises questions of fact and
law requiring further examination. It therefore adjourns examination
of this complaint.
Letter no. 5
The applicant has complained of the stopping of this letter of
30 December 1988 to Mrs. Calvert. It appears that the applicant first
complained of this interference in his petition of 9 January 1989, to
which the reply was dated 13 March 1989. The Commission notes however
that the applicant first introduced his complaint on 9 January 1990,
which is more than six months after the decision to stop the letter.
It follows that this complaint fails to comply with the six months
time-limit imposed by Article 26 (Art. 26) of the Convention and must
be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
Letter no. 6
The applicant complained of the stopping of this letter dated 4
January 1989 to his solicitor in his petitions of 9 January 1989 and
24 April 1989, to which he received a reply dated 29 June 1989. The
Commission notes however that the applicant first introduced his
complaint on 9 January 1990, which is more than six months after this
decision. It follows that this complaint fails to comply with the six
months time-limit imposed by Article 26 (Art. 26) of the Convention and
must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
Letter no. 7
The Commission recalls that the applicant's letter of 3 February
1989 to Councillor Murray was stopped and the applicant instructed to
re-write it. This letter, which was addressed to a Councillor involved
in a working party on penal reform, contained allegations of assault
by prison officers on other prisoners. The Department in its reply of
15 November 1989 to the applicant's petition stated that it had no
knowledge of these matters. The Commission finds that the alleged
interference raises questions of fact and law necessitating further
examination. It therefore adjourns examination of this complaint.
Letter no. 8
The applicant alleges that this letter, dated 17 June 1989, to
a prisoner in a different part of the prison, was stopped. It
concerned the applicant's civil suit alleging theft by a prison officer
and the applicant intended to call the other prisoner as a witness.
According to its reply of 15 November 1989, the Department had no
knowledge of the matter. The Government state that the letter is
recorded as having been sent and that it is not aware of any reason why
it should have been stopped or diverted.
The Commission finds in the circumstances of the case that the
applicant has failed to substantiate this complaint. It follows that
it must be dismissed as manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
Letter no. 9
This letter dated 13 November 1988 to a prisoner in another
prison was stopped. While the Department alleged that it was not aware
of this in its reply of 15 November 1989, the Government state that it
was stopped under the prison regulations in the interests of security
or good order or discipline. The Commission notes that this letter
contained veiled threats of retribution.
The Commission finds on the facts of this case that the stopping
of this letter was "necessary in a democratic society" for the aim of
preventing disorder or crime within the meaning of Article 8 para. 2
(Art. 8-2) 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.
Letters nos. 10 and 11
These letters of 23 January 1989 to Mr. Jenkinson and of 5
January 1989 to Mrs. Calvert were apparently stopped by the prison
authorities but, on complaint by the applicant, the Prison Department
instructed that both should be allowed to issue. In these
circumstances the Commission finds no indication of a violation of
Article 8 (Art. 8) of the Convention, a short delay while the
authorities decide on the conformity of measures with prison
regulations being in general compatible with this provision 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.
Letters nos. 12, 13 and 14
The applicant alleges that these letters were stopped. The
Government state that letter no. 14 is recorded as having been issued
on the relevant letter sheets. They have no knowledge of any stopping
of these letters. They comment that the applicant had sent letters to
these correspondents on numerous other occasions and that there was
certainly no prohibition on correspondence with these persons, one of
whom was an official with the Prison Department Headquarters.
The Commission finds in the circumstances of the case no evidence
of any interference by the prison authorities. It follows that these
complaints are manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
Letters nos. 15, 17, 18 and 19
The applicant complains of delay in the sending of these letters.
Even assuming however that the applicant has complied with the
requirements of Article 26 (Art. 26) of the Convention as regards the
six months time-limit and exhaustion of domestic remedies, the
Commission notes that the delay complained of did not exceed three
days. Short periods of delay while letters are checked for conformity
with prison regulations are in general compatible with the provisions
of the Convention. The Commission finds no indication on the facts of
this case of any interference contrary to 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.
Letter No. 16
The applicant complains that this letter to his solicitor was
delayed five days before posting. The Commission has in previous cases
acknowledged the importance of access by a prisoner to his solicitor,
in particular where potential litigation is involved (see e. g.
Campbell and Fell v. the United Kingdom, Comm. Report 12.5.82). It has
also found that such correspondence should only be the subject of
interference, by way of screening, in exceptional circumstances (see
e.g. Campbell v. the United Kingdom, No. 13590/88, Comm. Report
12.7.90). The Commission however finds it unnecessary to decide
whether substantial delay in the posting of letters to solicitors also
raises problems under Article 8 (Art. 8) of the Convention. The
Commission notes that it does not appear from the material submitted
by the applicant that he raised this complaint with the Secretary of
State. Since a petition to the Secretary of State has been found to
constitute an effective remedy as regards the application of prison
rules (Eur. Court H.R., Silver judgment of 25 March 1983, Series A No.
61, pp. 42-44, paras. 111-119), the Commission finds that the applicant
has failed to exhaust domestic remedies as required by Article 26
(Art. 26) of the Convention.
This complaint must therefore be rejected under Article 27 para.
3 (Art. 27-3) of the Convention.
Fraudulent certificates of posting
The applicant alleges that various certificates of posting issued
by the postal authorities relating to his correspondence have been
fraudulently filled in or otherwise tampered with. He points out to
different handwriting appearing on slips and numbers which do not
appear to correspond. The Government have explained the alleged
discrepancies arose from the fact that different prison officers fill
in the certificates during the course of the day and have submitted the
statement of the local postmaster, who observed nothing irregular in
the certificates in question, noting that his members of staff had
different ways of filling them in.
The Commission finds no indication on the facts of the case that
the discrepancies noticed by the applicant disclose any interference
with his correspondence.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Article 13 (Art. 13)
The applicant complains that he has no remedy for his complaints
as required by Article 13 (Art. 13) of the Convention.
The Commission finds this complaint raises points of fact and law
requiring further examination. It therefore adjourns examination of
this part of the application.
For these reasons, the Commission by a majority
DECIDES TO ADJOURN its examination of the complaints
concerning letters nos. 4 and 7 under Article 8 (Art. 8) of the
Convention and the complaint under Article 13 (Art. 13) of the
Convention;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
Full & Egal Universal Law Academy