CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1991

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }    AS TO THE ADMISSIBILITY OF     Application No. 17916/91 by J. against the United Kingdom             The European Commission of Human Rights sitting in private on 6 September 1991, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      F. ERMACORA                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 MM.   L. LOUCAIDES                      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 2 March 1991 by J. against the United Kingdom and registered on 13 March 1991 under file No. 17916/91;           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 United Kingdom citizen, born in 1951 and detained in HM Prison, Hedon Road, Hull.           The facts of the present case, as submitted by the applicant, may be summarised as follows.           The applicant was transferred from Hull to Liverpool prison on 8 January 1990.   He was to be placed in the segregation unit there (for unspecified reasons).   The applicant states that, on arrival at the prison, his personal property, including legal documents and family correspondence, was taken from him.   The applicant thought that the prison officers had no right to remove his papers and resisted.   He alleges that he was pinned to the ground by the officers in the ensuing struggle and taken to a special cell, which had no furniture. His clothes were removed and he was left with a blanket in the cold. The following day he was charged with assaulting one of the prison officers who had received a blow to his eye.           On 20 January 1990 the applicant was informed that the disciplinary hearing before the Board of Visitors on this charge was to be held on 22 January 1990.   The applicant states that he was illegally denied his prison wages of £1.65 that day.   He reacted by banging his cell door and demanding his earnings.   His need for this sum of money was acute as he wanted to buy cigarettes.   The conditions in the segregation unit were spartan and cigarette smoking was one of his few comforts.   As a result of the banging he was forcibly removed again to the special cell by three prison officers, where he remained for two days.   He refused to attend the disciplinary hearing as he felt psychologically and physically unfit for it, although a medical officer, after an allegedly cursory examination, had pronounced him fit to attend.           The Board of Visitors found the applicant guilty of the offence and awarded him 120 days' loss of remission (suspended for six months) and 56 days' confinement in a cell with cardboard furniture. He was transferred back to Hull prison under punishment four days later.   During February and March 1990 at HM Prison Hull he apparently served the remainder of the 56 days of cellular confinement by way of punishment.   The applicant sought legal aid for judicial review of the Board of Visitor's decision, and at the same time petitioned the Secretary of State about the punishment.   On 5 July 1990 the Home Office quashed the Board's finding of guilt on procedural grounds, but the applicant had by that time served the 56 days' cellular confinement.   The applicant was informed of this decision by a letter dated 12 July 1990 and earnings which had been forfeited during this period were restored to him.   Legal aid was refused for the judicial review application because "the legal position (was) too doubtful to justify proceedings", and "the potential benefit (was) insufficient to justify proceedings having regard to" their cost (final appeal decision of Legal Aid Area Committee 2 January 1991). COMPLAINTS           The applicant complains that he was denied natural justice contrary to Article 6 paras. 1 and 3 (b) of the Convention.   He also alleges that he suffered inhuman and degrading treatment, contrary to Article 3 of the Convention, and that he had no effective remedy for his complaints, contrary to Article 13 of the Convention.     THE LAW   1.       The applicant complains of the disciplinary proceedings against him at HM Prison Liverpool in January 1990.   He alleges that he was denied natural justice and invokes Article 6 para. 1 (Art. 6-1) of the Convention (the right to a fair hearing in the determination of a criminal charge) and Article 6 para. 3 (b) (Art. 6-3-b) (the right to have adequate time and facilities for the preparation of a defence).   However the Commission is not required to determine whether the disciplinary proceedings in this case involved the determination of a criminal charge, within the meaning of Article 6 para. 1 (Art. 6-1), as the applicant has failed to comply with the six months' rule laid down in Article 26 (Art. 26) of the Convention. The final effective decision in the case was the quashing of the disciplinary sentence by the Home Office on 5 July 1990, of which decision the applicant was notified on 12 July 1990. He did not effectively lodge his application to the Commission until 2 March 1991.   (His previous two letters to the Commission, the first dated 28 January 1991, had given no indication of what his complaints were about.   They merely requested an application form.)   In these circumstances the Commission cannot deal with this part of the application, which must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.       The applicant next complains that he has suffered inhuman and degrading treatment contrary to Article 3 (Art. 3) of the Convention. However the applicant has not specified or raised his complaints either before the prison authorities, including the Secretary of State, or before the civil courts in any claim for damages.   He does not appear even to have sought legal advice on the matter from his solicitors, as his principal concern was the quashing of the disciplinary sentence, which he obtained through his petition to the Secretary of State.   The Commission finds, therefore, that the applicant has failed to exhaust domestic remedies as required by Article 26 (Art. 26) of the Convention, or, even assuming that he had no effective remedies to pursue, he has again failed to comply with the six months' rule under Article 26 (Art. 26) as he did not lodge these complaints with the Commission within six months of the incidents in question.   It follows that this part of the application must also be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.       Finally, the applicant complains that he had no effective domestic remedies for his substantive complaints under Articles 3 and 6 (Art. 3, 6), contrary to Article 13 (Art. 13) of the Convention, which requires States to provide such remedies.   However, given the Commission's conclusions above that it cannot deal with the applicant's substantive complaints essentially because he has failed to observe the six months' rule laid down in Article 26 (Art. 26) of the Convention, for the same reason it cannot examine this part of the application.           The Commission notes that the applicant has not suffered any continuing prejudice beyond that which arose directly and immediately from his three days in a special cell in January 1990, his disciplinary adjudication at the same time, resolved by July 1990, and his 56 days of cellular confinement by way of a disciplinary punishment in February and March 1990.   His position is not therefore to be compared to that of a person subject to a continuing restriction on his substantive Convention rights.   In the circumstances of the present case the Commission finds that the "final decisions" referred to above at points 1 and 2 are also the final decisions in relation to the applicant's complaint under Article 13 (Art. 13) of the Convention (cf. No. 8206/78, Dec. 10.7.81, D.R. 25 p. 147 at pp. 151-152).   The Commission concludes, therefore, that this remaining part of the application has been introduced out of time and is inadmissible under Articles 26 and 27 para. 3 (Art. 26, 27-3) of the Convention.           For these reasons, the Commission unanimously           DECLARES THE APPLICATION INADMISSIBLE.         Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                       (C.A. NØRGAARD)