THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36790/97 
by Ha You ZHU 
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 12 September 2000 as a Chamber composed of

Mr J.-P. Costa, President,

Mr W. Fuhrmann,

Mr L. Loucaides,

Sir Nicolas Bratza,

Mrs H.S. Greve,

Mr K. Traja,

Mr M. Ugrekhelidze, judges,

and Mrs S. Dollé, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 21 March 1997 and registered on 7 July 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a citizen of The People’s Republic of China, born in 1970 and currently resident in Glasgow. He is represented before the Court by Mr. C. McGinley, a solicitor practising in Glasgow.

A. The circumstances of the case

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

The applicant arrived in the United Kingdom on or about 30 March 1995.  He was stopped by Immigration Officers and found to be travelling on a forged Japanese passport. He was immediately detained under powers contained in paragraph 16 of Schedule 2 to the Immigration Act 1971. The applicant was detained in HM Prison, Gateside, Greenock, Scotland. The applicant immediately made an application for political asylum under the 1951 United Nations Convention Relating to the Status of Refugees. This was refused on 9 June 1995. His appeal to an Adjudicator was dismissed on 13 September 1995 and his detention continued. The applicant applied for legal aid to challenge the decision of the Adjudicator before the Immigration Appeals Tribunal. This application was refused on 4 June 1996. He sought a review of that decision. In the meantime, he commenced judicial review proceedings challenging as unreasonable his continued detention.  A motion for interim liberation in the Edinburgh Court of Session was refused on 14 August 1996.  Following the grant of legal aid on 13 September 1996, a further petition attacking the substantive decisions of the Adjudicator and Immigration Appeal Tribunal was presented and interim liberation was granted by the Court of Session on 24 September 1996.

      

The applicant states that during the 18 months he was detained in prison, he was locked in his cell for 18 to 19 hours a day, with only one hour of exercise. On four or five occasions the prison officers forgot to let the applicant out of his cell for meals. He states that on a number of occasions he was assaulted by other inmates. Whilst eating he had to sit apart from the other prisoners in order to prevent them throwing food at him. The applicant states that he would suffer verbal racial abuse from other prisoners on a daily basis. For the majority of the period the applicant was isolated, in that there were no Mandarin speakers in the prison, save for a six month period when there was another Mandarin Chinese speaker in detention. The applicant had significant communication problems. For example, he alleges that it was six months before he realised that he had the right to 10 minutes of free telephone calls a month. Further, he was unable to read correspondence from the immigration authorities and he states that no interpreters were available to assist him. The applicant, who had a history of mental health problems, states that his health deteriorated in prison and he became depressed to the point of suicide. He states that after a suicide attempt he was put into a ground floor cell without blankets for a week.

The Government dispute various aspects of the applicant’s account. They submit that the applicant would not have been locked up for more than 15¾ hours a day. The Government also note that there is no record of the applicant missing meals and that the officer in charge of prisoners awaiting deportation, Mr D. McGill, has only one recollection of food being thrown at the applicant. The Government also submit that if the applicant ate alone at mealtimes this was by choice and that save for the first 6 months, when it is accepted there was no access to an interpreter, the applicant thereafter had access to an interpreter who visited him “most weeks” on a Friday. They also contend that whilst in the ligature free “suicide watch” cell, he would have been provided with a sleeping bag, but not blankets.

Mr McGill made a statement concerning the applicant on 19 September 1996. In this statement he commented that he was concerned for the applicant, who was depressed and isolated in the prison. Mr McGill confirmed that there had been no translation facilities for the first six months of the applicant’s detention and that the prison authorities had been unable to explain to the applicant the correspondence he received concerning his judicial review proceedings.

HM Inspectorate of Prisons for Scotland produced a report dated 1995 on Greenock prison. This report deals, inter alia, with the specific case of persons awaiting deportation (PADs).  The report comments as follows:

"... despite the best efforts of staff, the PADs were nevertheless subject to verbal abuse and intimidation.  The latter was of particular concern to the PADs when they had to leave their flat (and therefore the comparative safety of the group) to collect their meals in the dining room.  At those times they tended to keep together and in our view presented a sad and dejected sight."

The report describes how PADs were frequently not provided with the food appropriate to their religion and comments on the difficulties they experienced in communicating with the Medical Officer. The authors of the report also express their concern at the length of periods for which PADs were being detained.

The report goes on to conclude:

"In our view, PADs are inappropriately located in a complex Hall housing a difficult and disparate population within an already overcrowded local prison. ... these men, who are a generally conforming group, are subjected to a criminal subculture in which violence and drug abuse are common and from whom they can expect racial taunts and intimidation."

B. Relevant domestic law and practice

Under paragraph 16 of Schedule 2 of the Immigration Act 1971, a person may be detained under the authority of an immigration officer pending a decision to give or refuse him leave to enter.

Persons awaiting deportation are accommodated in Scotland within local prisons.   They are not housed in separate secure accommodation.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the conditions in which he was detained amounted to inhuman and degrading treatment. He complains that he was detained in a local prison with convicted criminals for a lengthy period. He refers to the excessive amount of time he spent locked in his cell and to the verbal and physical racist abuse to which he was subjected. He also comments upon his isolation due to his inability to speak English and the lack of translators/interpreters and notes his difficulties in communicating with the doctor. In particular he complains about a one week period where he was placed in solitary confinement, following a suicide attempt.

THE LAW

The applicant complains that the conditions in which he was detained amounted to a breach of Article 3 of the Convention, which provides as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government submit that the applicant has failed to exhaust domestic remedies.  They allege that if the applicant had been able to prove that he had sustained physical and mental suffering, and that the suffering was a result of a breach of the duty of care by the prison authorities, he might well have had grounds for a remedy in damages. The Government rely on dicta from Lord Bridge in R v Deputy Governor of Parkhurst ex parte Hague ([1991] 3 WLR 340) and Lord Kirkwood in Moffatt v. Secretary of State ([1995] SLT 729), suggesting that a prisoner may have a remedy in damages if his custodian negligently allows or deliberately causes the detainee’s health  to suffer in any way such that he may be in breach of his duty of care.

Further the Government submit that whilst the applicant’s experiences may have been unpleasant, they did not reach the minimum level of severe ill-treatment proscribed by Article 3. The Government also submit that the length of the applicant’s detention was in large part due to his own lack of co-operation and that in all the circumstances the length detention cannot be considered unreasonable. 

The applicant replies that all domestic remedies had been exhausted and contends that it is established law in Scotland that the Home Office cannot be liable to a detained immigrant in an action for negligence. The applicant relies on the case of W. v. the Home Office ([1997] Imm. AR 302) as authority for such proposition. Furthermore, the applicant contends that the conditions in which he was detained were such as to amount to torture or to inhuman or degrading treatment or punishment. He also submits that he cannot be criticised for failing to co-operate with the Government insofar as this involved completing papers to obtain an emergency travel document, which would have been inconsistent with his seeking asylum in the United Kingdom.

As regards exhaustion of domestic remedies, the Court recalls that the requirement under the Convention is to exhaust “effective remedies”, that is those capable of providing redress for the complaint (see Akdivar and others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1998-II, §§ 65-66). The Government do not suggest that there is an established line of authorities in Scottish law where damages have in fact been awarded in situations analogous to the present case. The highest the Government put it, is that there “might well be” a cause of action. The Court considers that the mere possibility of establishing a remedy in damages for a breach of duty in the present case is too speculative to be deemed an effective remedy. The Court further notes that in his petition for interim liberation and judicial review of the decision to detain him, the applicant did refer to and rely upon arguments based upon the prison conditions, but that nevertheless his application was refused by the Edinburgh Court of Session on 14 August 1996. Accordingly the Court considers that the applicant has satisfied the requirement of exhaustion of domestic remedies.

Turning to the substantive complaint under Article 3, the Court recalls that, according to the constant case-law of the Convention organs, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65 § 162).  The same holds true insofar as degrading treatment is concerned (Costello-Roberts v. the United Kingdom judgment of  25 March 1993, Series A no. 247-C, p. 59 § 30). The assessment of this minimum level of severity is relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see the above mentioned Ireland v. the United Kingdom and Costello-Roberts v. the United Kingdom judgments, loc. cit.). The Court further notes that the practice of the Convention organs has been to require compliance with a standard of proof “beyond reasonable doubt” that ill-treatment of such severity has occurred (see above mentioned Ireland v. United Kingdom judgment at § 161).

With regard to the threshold of severity required for a finding of a violation of Article 3, the Court recalls that in Aerts v. Belgium (judgment of 30 July 1998, Reports of Judgments and Decisions 1998-V p. 1939), it found no violation of Article 3 in respect of circumstances described by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment as falling “below the minimum acceptable [standard] from an ethical and humanitarian point of view”. In Peers v. Greece (Comm. report 4.6.98, pending before the Court) the Commission found a violation of Article 3 as to the conditions of the applicant’s detention in a segregation unit, but not as to conditions in the general “Alpha” wing. In that case, the applicant was isolated to some extent due to language difficulties.

The Court must look at all the circumstances of the case in order to determine whether, during the applicant’s detention at Gateside Prison, the “minimum level of severity” proscribed by  Article 3 was reached.

The Court first notes the applicant’s isolation in prison. For example, even on the Government’s calculations, the applicant was locked in his cell for almost 16 hours a day. Mr McGill described him as “more or less alone” in the prison. The applicant’s isolation from what was going on around him was exacerbated by the fact that, at least for the first six months of his detention, no Mandarin speaker was present in prison. The language position improved somewhat when arrangements were made for an interpreter to visit the applicant most weeks on a Friday.

The Court also notes that the applicant’s position as a foreigner in the prison rendered him particularly vulnerable. HM Inspectorate of Prisons for Scotland commented on racial abuse of PADs by other prisoners and, although no specific incidents are documented as regards the applicant, the Court considers it likely that he was aware of some ill-will towards foreigners on the part of other prisoners.

The applicant’s mental state is also relevant to the question of whether there has been a violation of Article 3. In this connection the Court notes that the applicant was clearly in a delicate state of mental health, and indeed he attempted to commit suicide whilst in prison. However, the Court notes that in response to this suicide attempt the applicant was placed in a special “ligature free” cell for a period of a week under particularly strict supervision, and there does not appear to have been any further suicide attempt. The Court does not accept that the conditions in the “ligature free” cell were inhuman or degrading: in particular, whilst the applicant did not have blankets, he appears to have had a sleeping bag.

Further, the Court notes that at least after the first six months of detention the applicant did have access to a telephone, and during that initial period, although there was no Mandarin speaker in the prison, the applicant received visits from a representative of the local Community Relations Council. It was this visitor who eventually arranged for the visits from an interpreter.  There appears to have been no problem in relation to visits, which were permitted, and the applicant refers to visitors bringing him books. Further no complaints are made about the accommodation itself, save that too much time was spent in the cell.

Overall, the Court considers that whilst it is clear that the applicant, who was detained pending removal from the country rather than for any involvement in criminal offences, had a difficult time in prison, and whilst it agrees with HM Inspector of Prisons that it is undesirable for prisoners awaiting deportation to be held in the same location as convicted prisoners, the prison authorities - including Mr McGill - appear to have made efforts to alleviate the situation. The applicant’s special needs were recognised, as is witnessed by the presence of the representative of the Community Relations Council and the interpreter, and the handling of the suicide incident, and indeed no complaint is made of the authorities as such. There is no indication that the applicant was set upon by his fellow prisoners in a way which might have rendered the conditions of his detention contrary to Article 3. 

It follows that the “minimum level of severity” proscribed by Article 3 was not reached in the present case, and that the application must be rejected as being manifestly ill-founded pursuant to Article 35 § 3 and § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

S. Dollé J.-P. Costa 
 Registrar President

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