Application No. 18632/91
                      by Liam McCOTTER
                      against the United Kingdom

      The European Commission of Human Rights sitting in private on
9 December 1992, the following members being present:

           MM.   C.A. NØRGAARD, President
                 S. TRECHSEL
                 F. ERMACORA
                 E. BUSUTTIL
                 G. JÖRUNDSSON
                 A.S. GÖZÜBÜYÜK
                 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
                 J.-C. GEUS
                 M.P. PELLONPÄÄ
                 B. MARXER

                 Mr. 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 26 July 1991 by
Liam McCotter against the United Kingdom and registered on 5 August
1991 under file No. 18632/91;

      Having regard to

-     the reports provided for in Rule 47 of the Rules of Procedure of
      the Commission;

-     the observations submitted by the respondent Government on 14
      July 1992 and the observations in reply submitted by the
      applicant on 29 September 1992;

      Having deliberated;

      Decides as follows:

      The applicant is an Irish citizen, born in 1963.  At present he
is detained at HM Prison Leicester.  He is represented in the
proceedings before the Commission by Ms McLeod of Messrs. Tom
McGoldrick, solicitors practising in London.

      The facts of the case as submitted by the parties may be
summarised as follows.

      The applicant was arrested on 19 February 1987 and subsequently
charged with conspiracy to cause explosions contrary to Section 3(1)(a)
of the Explosive Substances Act 1883 and Section 7 of the Criminal
Jurisdiction Act 1975.  This was alleged to be part of a terrorist
campaign conducted in England by the Provisionae applicant was arrested
on 19 February 1987 and subsequently charged with conspiracy to cause
explosions contrary to Section 3(1)(a) of the Explosive Substances Act
1883 and Section 7 of the Criminal Jurisdiction Act 1975.  This was
alleged to be part of a terrorist campaign conducted in England by the
Provisional IRA.  He was held in custody until trial. On 17 June 1988
he was convicted of the offence and on 20 June 1988 sentenced to 17
years' imprisonment.

      The applicant was sent to HM Prison Brixton on arrest and to
HM Prison Frankland on sentence.  He was transferred on 8 December 1988
to HM Prison Full Sutton and on 22 October 1990 to HM Prison Leicester
where he is being held at present.  All the above prisons are in

      For the duration of his time in custody, the applicant has been
classified by the Secretary of State as a Category A prisoner
(Exceptional Risk), that is as one whose escape would be highly
dangerous to the public or the police or the security of the state.

      The applicant's brother P. was convicted in Belfast in April 1987
of unlawful imprisonment and possession of firearms with intent to
endanger life and sentenced to 20 years' imprisonment. His brother S.
was convicted in Belfast in May 1989 of possession of explosives with
intent to endanger life and sentenced to 12 years' imprisonment.

      On or about 1 June 1987 the applicant applied to the Governor of
HM Prison Brixton for a temporary transfer to HM Prison Maze in
Northern Ireland to visit his brother P. who was and still is detained
there.  On 3 June 1987 the Governor rejected his application.  The
applicant then petitioned the Secretary of State for the Home
Department.  His petitions are dated 3 June 1987, 26 August 1988, 17
November 1988 and 13 November 1990.

      By petition of 17 November 1988 he also sought a temporary
transfer to HM Prison Crumlin Road in Northern Ireland so that he could
visit his brother S. who was detained there.  By petition of 13
November 1990 he sought a temporary transfer to HM Prison Maze for the
additional purpose of visiting S. who is now also detained there.

      The applicant receives visits regularly from 7 other of his
siblings and 3 of their spouses, who are on the list of approved
visitors.  Since June 1991, he has received 49 visits from them on 34
separate days.

      By written decisions dated 23 July 1987, 29 September 1988,
17 March 1989 and 1 February 1991 the Secretary of State rejected each
of the above petitions.

      The decisions provide as follows:

      "The Secretary of State has fully considered your Petition.
      Inter-prison visits may indeed be made between England and
      Northern Ireland but no unsentenced prisoner and, for
      security reasons, no prisoner in category A may be
      transferred for this purpose.  The Secretary of State is
      therefore unable to grant your request" (23.7.87 and

      "The Secretary of State has fully considered your Petition
      with regard to your request for an inter-prison visit in
      Northern Ireland. He has nothing further to add on this
      matter to his earlier reply of 29 September 1988".

      "The Secretary of State has carefully considered your
      request for a temporary transfer to Northern Ireland.  He
      has decided that the transfer would pose an unacceptable
      risk to security and your request is therefore refused."

      The applicant has made further applications for temporary
transfer by petitions dated 23 and 29 April 1992 and 16 July 1992.

Relevant Domestic Law and Practice

a) Visit entitlement

      The Prison Rules 1964 (S.I. 1964/388), made by statutory
instrument under the Prison Act 1952, Sections 47 and 52, contain,
inter alia, the following provisions:

      33(1) "The Secretary of State may ... impose restrictions
      ... generally ... upon the communications to be permitted
      between a prisoner and other persons."

      34(1) "An unconvicted prisoner may ... receive as many visits as
      he wishes within such limits and subject to such conditions as
      the Secretary of State may direct, either generally or in a
      particular case.

        (2) A convicted prisoner shall be entitled -
           (b) to receive a visit once in four weeks ..."

      Accumulated Visits:

           "Subject to the provisions of Orders 5A 12-18 ... convicted
           inmates may be allowed to accumulate visits up to a maximum
           of 12 and apply ... to be temporarily transferred to any
           local prison to take their visits.  Category A inmates ...
           must petition for temporary transfer ... An inmate must
           have accumulated at least 3 visits before he can be
           transferred to take accumulated visits."

b) Temporary transfer

      The Criminal Justice Act 1961 and Standing Order 5A provide that
a prisoner may apply for temporary transfer to another prison to
receive visits.  These may be from a close relative or relatives who
may also be in custody.  "Close relative" is defined so as to include
"brother".  The material provision is Section 27(1) of the Criminal
Justice Act 1961 which provides that:

      "The responsible minister may, on the application of a
      person serving a sentence of imprisonment or detention in
      any part of the United Kingdom, make an order for his
      temporary transfer to another part of the United Kingdom...
      and for his removal to an appropriate institution there."

      There are no statutory criteria governing the exercise of the
Secretary of State's discretion.

c) Categorisation of prisoners

      Category A prisoners are defined as those whose escape would be
highly dangerous to the public, or to the police, or to the security
of the state, no matter how unlikely that escape might be.  Category
A prisoners are further classified as presenting either a standard,
high, or an exceptional escape risk.  Prisoners assessed as Category
A (exceptional risk) are located in Special Security Units within
prisons.  In deciding on a prisoner's categorisation, account is taken
of the nature and circumstances of the offence; details of any previous
convictions, where appropriate, the prisoner's mental state; and
reports from police, prison and other sources.  The need to continue
to hold a confirmed Category A inmate in the highest security category
is reviewed at least once every 12 months on the basis of up to date

      Category A prisoners are subject to certain restrictions.  Their
movements within the prison are escorted and are closely monitored and
recorded.  Their visitors have to be approved and their photographs
verified by the police under special arrangements known as the Approved
Visitors Scheme.  They are subject to frequent cell changes.  They are
not permitted to work in the prison kitchen.  In addition, prisoners
in Special Security Units do not have access to prison workshops.


      The applicant complains that the refusal by the Home Secretary
of a temporary transfer to Northern Ireland to facilitate visits from
his family, in particular, his two brothers, constitutes a violation
of his rights under Article 8 of the Convention.  He submits that his
relationship with his brothers is very close as his parents died when
he was very young.  He further submits that the refusal on the ground
of his security classification is arbitrary and unreasonable since a
number of other Category A prisoners have been granted temporary
transfers both from Northern Ireland to England and from England to
Northern Ireland and permanent transfers from England to Northern
Ireland have taken place where there were similar security

      The applicant also complains that he has no effective remedy in
respect of his complaints since in judicial review proceedings the
courts will not look into alleged security reasons.  He invokes Article
13 of the Convention in this respect.


      The application was introduced on 26 July 1992 and registered on
5 August 1991.

      On 2 April 1992, the Commission (First Chamber) decided to
communicate the application to the respondent Government and to ask for
written observations on the admissibility and merits of the

      The Government's observations were submitted on 14 July 1992 and
the applicant's observations in reply were  submitted on 29 September


1.    The Government submit that the applicant has failed to exhaust
domestic remedies since he has not instituted proceedings for judicial
review of the refusal to transfer.  The applicant has replied that such
proceedings would be doomed to failure in light of domestic case-law
"In the matter of an application for judicial review by Paul Peter
Baker" of the High Court in Northern Ireland and the Divisional Court
in McAvoy ([1984] 3A11E.R.417).

      The Commission recalls that Article 26 (Art. 26) of the
Convention only requires the exhaustion of such remedies which relate
to the breaches of the Convention alleged and at the same time can
provide effective and sufficient redress.  An applicant does not need
to exercise remedies which, although theoretically of a nature to
constitute a remedy, do not in reality offer any chance of redressing
the alleged breach (cf. Application No. 9248/81, Dec. 10.10.83, D.R.
34, p. 78).

      It is furthermore established that the burden of proving the
existence of the available and sufficient domestic remedies lies upon
the State invoking the rule (cf. Eur. Court H.R., Deweer judgment of
27 February 1980, Series A no. 35, p. 15, para. 26, Application No.
9013/80, Dec. 11.12.82., D.R. 30, p. 96, p. 102).

      The Commission notes from the cases cited by the applicant that
it appears that domestic courts will not examine the Secretary of
State's reasons for refusing an application if that refusal is based
on considerations of national security.

      In these circumstances, the Commission finds that there is no
indication that the applicant would have had any possibility of
successfully challenging the refusal of the Secretary of State by way
of judicial review.  The Commission is accordingly unable to accept
that the application should be declared inadmissible for non-exhaustion
of domestic remedies.

2.    The applicant complains that the refusal to transfer him
temporarily to a prison in Northern Ireland to facilitate visits with
his family, in particular, his two brothers, is a violation of Article
8 (Art. 8) of the Convention.

      Article 8 (Art. 8) of the Convention 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 Government have submitted that the relationship between the
applicant and his brothers does not constitute family life within the
meaning of Article 8 (Art. 8) of the Convention.  They refer to case-
law where emphasis was placed on the element of financial or other
dependency.  The Commission however considers that in the context of
prisoners or other persons who are detained the concept of "family
life" must be given a wider scope.  Prisoner generally have limited
means of contact with the outside community and of maintaining
relationships with family members.  "Family life" for prisoners is
inevitably restricted to visits, correspondence and possibly other
forms of communication such as telephone calls.  Emotional dependency
between, for example, parents and adult children, or siblings is even
enhanced in these circumstances.  The Commission recalls in this
context that the European Prison Rules emphasise the need to encourage
these links:

      "65. Every effort shall be made to ensure that the regimes of
      the institutions are designed and managed so as:

      (c)  to sustain and strengthen those links with relatives and
      the outside community that will promote the best interests of
      prisoners and their families."

      The Commission has also stated that it is of the opinion that
Article 8 (Art. 8) requires the State to assist prisoners as far as
possible to create and sustain ties with people outside prison in order
to facilitate prisoners' social rehabilitation (eg. No. 9054/90, Dec.
8.10.82, D.R. 30 p. 113 and No. 15817/89, Dec. 1.10.90, to be published
in D.R.).

      In light of these factors, the Commission finds that the
applicant's complaints must be held as falling within the scope of
Article 8 para. 1 (Art. 8-1) of the Convention.

      The applicant has submitted that the refusal of temporary
transfer constitutes an interference with his right to respect for his
family life. The Commission considers however that the applicant is
arguing in effect not that the State should refrain from acting but
rather that it should take steps to implement a particular policy.
Although the essential object of Article 8 (Art. 8) is to protect the
individual against arbitrary interference by public authorities, there
may in addition be positive obligations inherent in an effective
"respect" for family life (see eg. Eur. Court H.R., Marckx judgment of
13 June 1979, Series A no. 31 p. 31 para. 31). In this context, the
notion of "respect" is not clear-cut and its requirements will vary
considerably from case to case according to the practices followed ach
1992, Series A no. 232-C para. 44)

      With regard to the present case, the Commission recalls that the
first applicant who is from Northern Ireland is detained in a prison
in England and that he is requested a transfer to facilitate visits
with his brothers and other members of his family.  The Commission
notes that the first applicant, as are his brothers, is serving a long
term of imprisonment and that the considerable distance involved
imposes difficulties in utilising visit entitlements which cannot be
said to be negligible.

       The Commission notes however that the applicant is lawfully
detained, as are his brothers, for serious offences committed against
the background of a terrorist campaign.  The applicant is in addition
detained as a Category A (Exceptional Risk) prisoner. Any transfer
would, in the Government's submission, be highly dangerous, increasing
greatly the risk of escape and his detention in Nortern Ireland would
also facilitate his contact with others of his beliefs and increase the
potential for covert subversive activity in the prison there.

      The Commission has also had regard to its constant case-law
according to which a prisoner has no right as such under the Convention
to choose the place of his confinement and that a separation of a
detained person from his family and the hardship resulting from it are
the inevitable consequences of detention (see e.g. No. 5229/71, Dec.
5.10.72, Collection 42 p. 14, No. 5712/72, Dec. 15.7.74, Collection 46
p. 112 and No. 9054/90, Dec. 8.10.82, D.R. 30 p. 113).  The Commission
considers that 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 e.g. No. 5712/72, Dec.
18.7.74, Coll. 46, p. 112 and No. 7819/77, Dec. 6.5.78, published in
part, D.R. 14, p. 186).

      The Commission finds that no exceptional circumstances arise in
this case.  It notes that the applicant is detained in England since
he was arrested and tried there in respect of offences committed as
part of an alleged terrorist campaign in England.  As a prisoner, the
applicant is subject to the normal regime as regards correspondence and
visits. While his family reside, or are detained, in Northern Ireland,
it appears that seven of the applicant's siblings and three of their
spouses are on the list of approved visitors and visit him regularly -
 in the last year they made 49 visits over 34 separate days.

      Having regard to the above circumstances, the Commission finds
that the failure on the part of the United Kingdom Government to
provide temporary transfer arrangements to Northern Ireland discloses
no lack of respect for the applicant's family life within the meaning
of Article 8 (Art. 8) of the Convention.

      It follows that the complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3.    The applicant also complains under Article 13 (Art. 13) of the
Convention that he has no effective remedy in respect of his

      Article 13 (Art. 13), however, does not require a remedy under
domestic law in respect of any alleged violation of the Convention.
It only applies if the individual can be said to have an "arguable
claim" of a violation of the Convention (Eur. Court H.R., Boyle and
Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).

      The Commission recalls that it has found the applicant's
complaints under Article 8 (Art. 8) of the Convention manifestly ill-
founded.  In these circumstances, the Commission also find that the
applicant cannot be said to have an "arguable claim" of a violation of
the Convention.

      It follows that this part of the application 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


      Deputy Secretary to the               President of the Commission

         (M. de SALVIA)                           (C.A. NØRGAARD)