THE FACTS

The facts presented by the Parties and apparently not in dispute
between them may be summarised as follows:

The applicant was born in the Bahama Islands, then a British colony,
in 1932. He is now detained in D. Hospital, Berkshire, England. He is
represented before the Commission by Mr. C., Solicitor, London.

Between 1954 and 1963 the applicant was convicted in the Bahamas of a
number of offenses involving violence. He was sentenced in 1963 to ten
years' imprisonment and then while in prison, in July 1968, he killed
a prison warder. On .. October 1968 he was convicted of murder and
sentenced to death. He appealed against the conviction but the appeal
was rejected. He also petitioned for a commutation of the death
sentence. This was first refused but in March 1969 the Governor of the
Bahamas commuted the death sentence to one of life imprisonment.
The Bahamas Government then requested that the applicant be removed to
an institution in the United Kingdom. This was possible under a United
Kingdom statute, the Colonial Prisoners Removal Act 1884. The request
was made because the authorities thought that there was no prison in
the Bahamas where the applicant could serve his sentence. He had a
record of violence and has killed a warder in the one prison where it
might have been possible to detain him. An Order under the 1884 Act was
accordingly made by the United Kingdom Secretary of State and was
concurred in by the Governor of the Bahamas.

It seems that the applicant had never visited England before and had
no personal links with England. His mother, his wife, and his five
children were all resident in the Bahamas. On arrival in England (March
1969) the applicant was sent to A. prison; later he was sent to B. and
the to C. - all maximum security prisons. In December 1971, two doctors
reported that the applicant was suffering from mental illness (paranoid
psychosis) and that he should be sent to a mental hospital. On ..
February 1972 the applicant was transferred to D. Hospital where he
remains.

On various occasions the applicant has petitioned the United Kingdom
authorities asking to be transferred back to the Bahamas or to be
allowed to make periodic visits to his family there. His requests have
been refused.

The Bahamas achieved independence on 10 July 1973. Since then, it seems
that the United Kingdom has been discussing with the Bahamian
authorities the question of repatriating prisoners held in England
under the Colonial Prisoners Removal Act. But as the Bahamian
authorities have other pressing problems to deal with, it seems that
no final decision has yet been reached.

Complaints

The applicant does not appear to complain about his detention as such.
He complains, however, that being from the Bahamas, having always lived
there and having been sentenced there for a crime committed there, he
should serve his sentence in his home country. He claims that his
detention in the United Kingdom constitutes a violation of Articles 3
and 8 of the Convention.

SUBMISSIONS OF THE PARTIES

Submission of the respondent Government (4 June 1973)

The Government explains that at the time of the applicant's removal to
the United Kingdom, the Bahamas were a British Colony although they
enjoyed a large measure of internal self government.

Section 2 of the Colonial Prisoners Removal Act 1884 provides for the
removal of colonial prisoners to the United Kingdom (or to other
colonies) when (inter alia) there is no prison in the colony in
question where "the prisoner can properly undergo his sentence or
otherwise the removal of the prisoner is expedient for his safer
custody or for more efficiently carrying his sentence into effect".

The Bahamas are no longer a British Colony. But the applicant's
principal complaint relates to the fact that he is not allowed to serve
his sentence there. This complaint is therefore outside the territorial
competence of the Commission and is incompatible (see Application No.
1065/61, Yearbook, Vol. IV, p. 250 Belgian Congo case).

Article 8

Insofar as the applicant complains of a violation of Article 8 of the
Convention, the Government submit that detention in a prison pursuant
to a sentence passed on conviction for a criminal offence necessarily
involves a deprivation of liberty going beyond the mere fact of
confinement. Certain consequences are inherent in the fact of
imprisonment (see Application No. 2676/65 - Collection of Decisions,
Vol. 23, p. 31 at p. 37) and a margin of appreciation is permitted to
States. The Government do not dispute that the effects of imprisonment
may be more severe in some cases than in others and this may be the
case where it is necessary to take measures in respect of persons whose
record and disposition require particular precautions to be taken. They
submit, however, that where such precautions are taken for the purposes
specified in Article 8 (2) and are within the margin of appreciation
accorded to States, they are justified under the Convention.

The applicant has a record of violence, including the violent murder
of a prison warder. This murder took place in the principal prison in
the Bahamas and the authorities concluded that there was no prison or
mental institution in the Bahamas suitable for the applicant's
confinement when his death sentence was commuted. Accordingly the
authorities had no alternative but to move the applicant to a secure
place outside the Bahamas. The applicant's removal from the Bahamas
inevitably made it more difficult for his family to visit him but this
was a natural and inevitable consequence of his removal to a place of
security.

It is thus submitted that, insofar as the applicant is complaining
about his removal from the Bahamas and his separation from his family,
his complaint is manifestly ill-founded.

Furthermore it should be noted that the applicant has exactly the same
rights to visits as anyone else detained in the institutions where he
is (or was) detained. Persons in prison are allowed a certain number
of visits - there is no restriction on visits to persons in special
hospitals like D.. The only reason why members of the applicant's
family have not visited him is the practical difficulty caused by the
distance involved. What the applicant is really seeking is a right
separate from, and additional to, the right to respect for family life,
namely a positive right which requires the State authorities to make
financial provision for visits to prisoners by their families. This is
not a right covered by the Convention, nor does the Convention grant
any right for a prisoner to be detained in a particular place (see
Application No. 2516/65, Collection of Decisions p. 28 at p. 38).
Examined in this way, the applicant's complaint is incompatible.

The applicant has also requested that he be returned to the Bahamas
from time to time to receive accumulated visits. Apart from the fact
that this is not provided for under the 1884 Act and the fact that
there are no public funds to cover it, such temporary transfer would
create security difficulties in the Bahamas.

Article 3

The applicant does not complain about the fact of his confinement. He
complains only about the place of his confinement, the distance from
his family and the separation which results directly from this
distance. It is submitted that such matters do not give rise to a
violation of Article 3 of the Convention.

A situation like the present arises in any case where a prisoner is
confined a long way from home. It arises, for example, whenever a
prisoner commits a crime in a foreign and distant country. Accordingly,
it is submitted that the application be, in this respect, declared
manifestly ill-founded.

Conclusions

Accordingly the Government requests the Commission to declare all the
applicant's complaints inadmissible, either as being incompatible or,
alternatively, as being manifestly ill-founded.


Submissions of the applicant (presented on his behalf by his solicitors
on 5 June 1974)

The applicant submits that his detention in England constitutes a
violation of Articles 3 and 8 of the Convention. His detention in
England is not covered by the provisions of Article 8 (2). It is a
principle of international acceptance that a person should be punished
and should serve his sentence in the country in which he committed the
offence.

The applicant's punishment is inhuman and amounts to a violation of
Article 3 of the Convention. He is being detained in a country with
which he has no previous connection for crimes which were not committed
there. This is, in effect, the inhuman punishment of transportation.
The Act under which he was transported is a colonial anachronism and
is now no longer valid. In addition to being a violation of Article 8
of the Convention, it is an inhuman punishment to remove a prisoner
from all practicable possibility of contact with his family. It is
inhuman punishment to put bureaucratic convenience before the
fundamental rights of the individual.

The Bahamas are now independent, yet the United Kingdom authorities
have, as yet, made no proposal for the applicant's return to his
homeland.

The problems of the Bahamian Government should be solved by them. If
it is true that the Bahamas have no suitable place of detention, this
is the fault of the local authorities, certainly not the fault of the
applicant.

THE LAW

The Commission has examined the facts of the case in the light of
Articles 3 and 8 (Art. 3, 8) of the Convention.

The Commission thinks it is important to recall the essential facts.
The applicant is a man of violence. In 1968, while serving a prison
sentence, he murdered a prison warder in the Bahamas and was sentenced
to death. This sentence was later commuted to one of life imprisonment.
In view of the non-existence of a suitable maximum security prison in
the Bahamas he was transferred to a prison in England by virtue of an
order made under the Colonial Prisoners Removal Act of 1884; at the
time the Bahamas was a British Colony and only became independent in
July 1973.

There appears to be no dispute as to the fact that the applicant is now
suffering from mental illness and that it is essential for him to be
kept and treated in a special institution of high security.

The essence of the applicant's case is that he has a right to be kept
in the Bahamas.

The Commission has stated on many previous occasions that a prisoner
has no right, as such, under the Convention to choose the place of his
confinement. Nevertheless, it is obvious, that while a prisoner may not
have the right to choose where, in a particular country, he wishes to
be confined, the movement of a prisoner from one country to another
raises more complicated issues. This is particularly so when he is
moved 3,000 miles from his home country and it becomes quite impossible
for him to receive visits from his family or from anyone with whom he
was formerly acquainted.

The case is also complicated by the fact that the complaint can only
be considered in so far as it relates to the United Kingdom. The
applicant cannot complain to the Commission about the conduct of the
Bahamian authorities (and he has not attempted to do this). The Bahamas
do not now fall within the Commission's jurisdiction. They were
formerly included in the British declaration under Article 62 (Art. 62)
of the Convention but they are now independent and, in any case, no
declaration under Article 25 (Art. 25) has ever been made by the
respondent Government in respect of the Bahamas.

Furthermore, the applicant cannot complain about his original transfer
to the United Kingdom; because such complaint would be inadmissible
under the six months' rule. He can only validly complain about his
continued detention in England.

The Commission has first examined the facts in the light of Article 8
(1) (Art. 8-1) of the Convention which secures (inter alia) "respect
for .... family life". It is true that there is a prima facie
interference with the applicant's family life, as there is in the case
of many prisoners, and it is also true that this interference goes
beyond what would normally be accepted in the case of an ordinary
detainee. Nevertheless, the Commission considers that the facts fall
within the permitted exception in Article 8 (2) (Art. 8-2). The
interference with the applicant's family life "is necessary in a
democratic society ... for the prevention of disorder or crime [and]
for the protection of the rights and freedoms of others". The
applicant's is an exceptional case. There appears to be no dispute that
if the applicant were to be detained in the Bahamas it would be
necessary to construct a special place of detention for him, because
there is now no prison or hospital there where he could be held. The
question becomes one of balance and reasonableness. There is no
suggestion that the applicant's family life has been interfered with
merely because of administrative convenience. He has been moved to, and
kept in, a place far from his home because there is no place near to
his home where he can be kept in reasonable security.

The Commission has next examined the case in the light of Article 3
which secures that "no one shall be subjected to ... inhuman ...
punishment". The applicant is a violent killer originally sentenced to
death and it was only after his death sentence was commuted that it was
decided to send him to the United Kingdom. The death sentence itself
would not have been contrary to the provisions of the Convention - see
Article 2 (Art. 2).

Furthermore, it is agreed that the applicant is suffering from severe
mental illness and that he is now detained in an institution which is
designed to cater for mentally unbalanced criminals. It may on balance
be less inhuman to keep him in D. (albeit that it is 3,000 miles from
his home) than it would be to keep him in unsuitable confinement in the
Bahamas. There is no suggestion that the conditions of his detention
in D. otherwise amount in any way to ill-treatment under Article 3
(Art. 3), and, indeed, they are presumably more favourable for him than
the conditions of normal prison life.

An examination by the Commission of these complaints as they have been
submitted, including an examination made ex officio, does not therefore
disclose any appearance of a violation of the rights and freedoms set
out in the Convention and in particular in Article 3 and 8 (Art. 3, 8).

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

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE