European Court of Human Rights

 


APPLICATION No 7114/75

Alan Stanley HAMER v. the UNITED KINGDOM

DECISION of 13 October 1977 on the admissibility of the application

Article 12 of the Convention : Detention, as such, does not prevent in fact the exercise of the right to marry.

Can the refusal to grant a prisoner the necessary facilities to marry, be considered as a measure taken under "national laws governing the exercise" of the right to marry ?

Delaying the exercise of the right to marry may affect the substance of this right. [Application declared admissible).

THE FACTS p. 189)

The principal facts of the case as submitted by the parties and apparently not in dispute between them may be summarised as follows -

The applicant was born in 1947 and is a citizen of the United Kingdom At the date of introduction of his application he was detained in Ganree Prison. He is now resident in a pre-release hostel at Exeter Prison. The applicant initially conducted his own case before the Commission. He is now represented by Mr Cednc Thornberry, barrister-at-law, London.

On 19 December 1974 the applicant was sentenced to a total of five years imprisonment on a number of charges including obtaining property by deception and theft. His earliest date of release is in January 1978. He has had the opportunity of taking home leave since about May 1977.

On 7 March 1975 the applicant petitioned the Home Secretary for permission to marry and on 21 March 1975 was informed in reply that "in accordance with the regulations it is not poss(b)e to allow you temporary release for the purpose of marriage as consent is only given if there is a child to legitimise". He petitioned again on 7 April 1975 and received a reply to similar offer: on 25 April 1975. He repeated this request on a number of occasions thereafter, without success

The decision to refuse the applicant permission to marry was taken in accordance with the then current practice of the Home Office in respect of the marriage of prisoners in England and Wales. Under this practice a prisoner was allowed temporary absence in order to marry only if it would have the effect of legitimising a child of the prisoner. Otherwise prisoners were not allowed to be absent in order to marry, although exceptionally permission was given on compassionate grounds

Where a prisoner is allowed to marry, arrangements are made for his escort 10 a registry office, church or chapel. In the later stages of their sentences certain prisoners may be granted periods of temporary release and may make their own arrangements for marriage during such periods.

Correspondence took place between the Home Office and the applicant's fiancée and Members of Parliament on the matter. In a letter of 12 May 1975 from the Under Secretary of State at the Home Office to the applicant's Member of Parliament it was said inter alia that :

"Prisoners or their fiancées quite often ask to be allowed to marry during their sentence ; but I am afraid that it would be impossible administratively, even if it were thought desirable as a matter of policy, to grant all such requests ... The present rule .. gives us an objective criterion which avoids our having to assess whether the marriage would otherwise be desirable. Any such assessment would be an impossible and intolerable burden for us and would also lead to complaints about favouritism from prisoners who were turned down . . I am afraid I can find no reason to treat (the applicant) exceptionally by granting him permission to marry during his sentence."

Complaints

The applicant complains that he was denied the right to marry during his sentence, in violation of Art. 12 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The Commission examined the admissibility of the application on 16 July 1976 and decided, in accordance with Rule 42 (2) (b) of its Rules of Procedure that notice of it should be given lo the Government of the United Kingdom and that they should be invited to submit observations in writing on its admissibility. The Government's observations were submitted on 21 September 1976 and the applicant's observations in reply were submitted on 12 October 1976.

On 11 March 1977 the Commission carried out a further examination of the admissibility of the case and decided in accordance with Rule 42 (2) (b) of the Rules of Procedure to invite the parties to appear before it to make oral explanations on its admissibility and merits.

By letter of 20 September 1977 the applicant's representative firstly re quested the Commission to obtain from the respondent Government a copy of a new Circular Instruction relating to the marriage of prisoners which, he stated, appeared to have been adopted as from 1 September 1977. Secondly he alleged that a letter written by the applicant in about April 1975 concerning his request to marry had been stopped by the authorities and requested observations as to whether such seizure might now be made the subject of a complaint under Art. 8 of the Convention. Thirdly, he stated that it was contemplated that two issues might be raised under Art. 14 in conjunction with Art. 12, namely la), that official interference with the right to marry was limited to prisoners and (b), that such interference arbitrarily discriminated among different categories of prisoner, both in breach of Art. 14. Finally, he stated that for various reasons it might be necessary for the "effective exercise" of the applicant's right of petition, that he should himself be present at the hearing and requested the Commission to raise the matter with the respondent Government.

On 5 October 1977 the Commission decided not to request the respondent Government to arrange for the applicant's temporary release from custody to enable him to attend the hearing. On 8 October 1977 the Commission decided not to request the Government to produce a copy of the new Circular Instruction at the present stage of proceedings at least. It decided to inform the parties that it did not wish to hear any submissions under Art. 8 of the Convention in respect of the alleged stoppage of a letter, it being open to the applicant to introduce a separate application in respect of any complaint in this respect if he so wished. It also decided that in principle it would allow the applicant's representative to raise the issues under Art. 14 referred to in his letter of 20 September 1977.

On 13 October 1977 the Commission heard the parties' oral submissions on the admissibility and merits of the application.

SUBMISSIONS OF THE PARTIES

1 Submissions of the respondent Government

The respondent Government submitted in their written observations that Art 12 was formulated in very general terms and was not to be regarded as giving every man and woman an unrestricted right to marry. Account must be taken of the particular circumstances in which individuals found themselves as well as the national laws governing marriage.

Referring to the judgment of the European Court of Human Rights in the Golder case (Series A. Vol. 18, pp. 18-191 they submitted that the exercise of the right to marry under Art. 12 fell into the category of provisions which, not being narrowly defined, were subject to limitations by implication The application of such limitations in this case must be considered in the light of the applicant's position as a person lawfully detained in conformity with Art 5 (1) (a) of the Convention.

They referred also to the Commission's decision on the admissibility of Application No. 892160, X. v. the Federal Republic of Germany [Yearbook IV, p. 240 at pp. 254.256). and to a judgment of the Court of Appeal for England and Wales (R. v. Secretary of State for Home Affairs and Another, ex parte Bhajan Singh, 1975 2 All ER 1081 at pp. 1083-1084). They submitted that regard should be had to the restrictions on liberty entailed by a sentence of imprisonment and also :

(a) to the requirements of order and discipline operating in a prison establishment and the need for appropriate rules to regulate the grant of facilities to enable prisoners to marry ;

(b) to the fact that the refusal of facilities did not involve a complete bar on the applicant's marriage but only a delay until he was finally released or granted home leave or other temporary release ,

(c) to the fact that if he was granted facilities to marry, he would not, while detained in prison, be able to live together with his wife.

In the light of these circumstances, the respondent Government did not accept that the refusal of such facilities could be regarded as being inconsistent with the right to marry under Art. 12. They therefore requested the Commission to declare the application incompatible with the provisions of the Convention, or alternatively manifestly ill-founded, and therefore inadmissible under Art. 27.

In their oral submissions the Government observed that the applicant and his fiancée no longer wished to marry. They also observed that the applicant had been free to marry both before and after his arrest. He had been arrested in October 1974 but had been released on bail. He had been free to marry until 15 December 1974. The applicant had also been eligible for consideration for parole from about the middle of 1976 onwards and had applied for it in December 1976. He had had the possibility of home leave in May 1977 and had actually taken it on three occasions in August and October 1977. He had been living outside the prison, in a pre-release hostel since July 1977 and had been free to marry but had not done so.

The interpretation of An. 12 raised certain difficulties and showed that there must be limitations on 1he right to marry. It was not a unilateral right in the first place. There must be another person able and willing to marry. Secondly, if literally interpreted. Art. 12 added nothing to the rights prescribed by national law, although the Government accepted that the intention was to guarantee certain minimum rights. There was no concept of "marriageable age" outside that prescribed by national laws and it was not clear why this term had been included since H appeared to add nothing to the reference to "national laws" It was unclear why the phrase "men and women" had been used when the phrase "inter-marry", which would have been expected if the intention had been to confine the right to men marrying women, had not been used.

The concept of the right to marry involved the existence of two persons able and willing lo exercise the right. If a person volunteered to live or work in a situation where there was no opportunity for a person of the opposite sex to be present, how couid he exercise the right and how could he complain if he was unable to do so ? This might be the case of a sailor at sea or a person living on an uninhabited island. A person who chose to live and work in such a way put it out of his power to exercise the right. This was of importance in considering the position of a person who chose to commit a crime and found himself in prison as a result

The right was clearly not absolute Art. 12 obviously could not mean that the right could be exercised at any time in all circumstances. It was now recognised that very young persons could not marry. This had not always been the case. The insane could not marry in the United Kingdom. In some countries the medically unfit could not do so Marriage within prohibited degrees of consanguinity was forbidden in all countries. All these matters depended on national law and no national law permitted the exercise of the right at any time and in all circumstances.

English law restricted the time within which a marriage could be celebrated and the Marriage Act of 1949 provided that it must be in a place to which the public had access. A prison was not a place in which a marriage could be performed since the public had no access to it. The object of this provision was to ensure full publicity of the marriage. Marriage was regarded as a question of status, not merely private right.

The result was that if a prisoner was permitted to marry special arrangements had to be made for him to be escorted to a public place. This could involve considerable security precautions and cost. It would not be justifiable to put prisoners in a privileged position by allowing them to marry in private A special licence to do so could only be granted in very limited circumstances

The practice had been not to permit a prisoner temporary absence to marry unless there had been a child to legitimise. If there was a child permission would always be given, for its benefit. There had also been very rare cases in which permission had been given where there were overriding compassionate circumstances.

English law did not in any way forbid the marriage of a prisoner. It merely controlled the exercise of the right to do so in the same way as in the case of anyone else who, by his conduct, put it out of his reach to exercise the right A prisoner put the exercise of the right out of his reach since as a result of his criminal conduct he was deprived of his liberty and unable in the ordinary way, without permission in the circumstances outlined, to go to a public place where he could marry. The sailor did the same by his decision to live on the seas, as did the Jesuit priest through the way he chose to live. A prisoner did not need Home Office consent 10 marry, he merely needed permission to leave prison. Only the deprivation of liberty precluded him from going to an authorised place.

Art. 12 was in very wide general terms. To give sense to it, there were necessarily limitations. Unlike Art. 8 and other Articles, there were no specific limitations. This suggested that there must be implied limitations and the Government again referred to the Golder case in this respect. The particular circumstances must be taken into account. Art. 5 (1) (a) must be taken into account in the case of a prisoner. Secure conditions were required for detention and United Kingdom law did not allow for marriage in prison. National law must plainly govern the exercise of the right, namely the time, the place, prohibited degrees, etc. The Government again referred to the Commission's decision in Application No. 891/60 and the judgment of the Court of Appeal in the case of Bhajan Singh (sup. cit.). They also referred to the Commission's decision on admissibility in Application No. 6564174 (Decisions and Reports 2, p. 105). They submitted that the Commission's observations in that decision on the right to found a family applied equally to the right to marry. Art. 12 did not mean that a person must at all times be given the actual possibility to marry and the situation of a lawfully convicted prisoner delayed his right 10 marry but did not otherwise infringe it. There must be rules and regulations in prison, controlling the activities of prisoners. Prisons faced staff problems and escorting a prisoner to his marriage might deprive other prisoners of their opportunities for exercise, recreation etc. It was also relevant that a prisoner could not cohabit or consummate his marriage. It was difficult to see the particular merit, apart from legitimisation of a child, of marrying in these circumstances. All that was involved was delay ; there was no abrogation of the right. The applicant himself appeared to recognise this in his written observations. Questions of the time, place and circumstances in which a person could marry must be left to the national Government within its margin of appreciation. The practice followed in the United Kingdom had been fair and sensible.

No distinction was drawn between different categories of prisoner. The practice had been applied uniformly. The two prisoners referred to in the applicant's written observations had been allowed to marry to legitimise children. The rules had been changed since August 1977 so that if a prisoner had over 12 months left to serve, he was eligible for temporary absence to marry whether there was a child to legitimise or not. There had not been any inconsistency in following the practice.

The Government were not able to accept the truth of all the factual allegations made on behalf of the applicant at the hearing They emphasised that if the applicant had been concerned to marry he could have done so before or after his arrest. They also stated that in August 1975 the applicant had informed a prison welfare officer that he intended to continue with his applications and petitions (to get married) "to keep the authorities busy-his contribution to irritate authority". They did not suggest that the application was abusive but wished to draw this information to the Commission's attention.

Dealing with the six points of law raised by the applicant at the hearing, the Government accepted firstly that it had to comply with national law (as it had done) and secondly that national law had to comply with the Convention. The applicant's third point, namely that there could be no implied limitations to Art. 12 which must be interpreted literally, was fatal to his argument since if Art. 12 was interpreted literally it added nothing to national law. It was implicit in the language that there had to be limitations. As to the fourth point, the Government did not dispute that there could be no limitations which destroyed the protected right However the delay in this case in exercising the right to marry with a particular person did not injure the substance of the right. Fifthly, the applicant had said that any limitations must be compatible with the policy of the Convention and purpose of prison. However there was an immediate conflict between imprisonment and the preservation of the family unit. Rule 58 of the Standard Minimum Rules for the Treatment of Prisoners and the observations by Lord Kilbrandon which the applicant had quoted, emphasised that the vital feature of imprisonment was the deprivation of liberty. It was the deprivation of liberty which prevented exercise of the right to marry The applicant had also suggested that any limitations must be construed strictly, but this suggestion overlook the margin of appreciation which the Court had held was left to slates.

The Government submitted that Art. 12 did not guarantee a right to marry a particular person at a particular time. The practice followed in the applicant's case had been compatible with it. They asked the Commission to declare the application inadmissible on the ground that it was manifestly ill-founded.

1. Submissions of the applicant

In his written observations the applicant submitted that the practice described by the Government encouraged immorality and discriminated against persons who behaved responsibly by ensuring that they did not have children out of wedlock. Illegitimacy was no longer a barrier in life and the applicant did not accept as a valid argument that the Government's concern was to legitimise illegitimate children.

Nor did the applicant accept that it was necessary for a prisoner to leave his prison in order to get married. Every prison had a chaplain on its staff and it should be possible to arrange for marriages within prisons. They very wording of the rule described by the Government, namely that "prisoners were not normally allowed to be temporarily absent... in order to marry" implied that they were concerned more with the temporary absence of the prisoner than with prevention of his marriage.

The applicant accepted that a man who wished to marry whilst in prison faced disadvantages and strains, as did his intended wife. However, the final decision must lie with the people concerned and the applicant did not accept that the State ever had the right lo prevent two people of marriageable age from being married, notwithstanding that one was held in custody.

The formula employed in Art. 12, "Men and women .. ", was, contrary to what the Government submitted, infinitely more specific than the formula "Everyone has the right ..." employed in other Articles It was used to indicate that the Article applied only to persons of marriageable age Only two conditions were laid down for exercising the right to marry The first concerned age end the second was that the right to marry was granted according to the national laws governing the exercise of this right. The Article was not concerned with "domestic practice" but only with "national laws" and the Government's arguments as to domestic practice were irrelevant. Nowhere in their observations was there the slightest reference to the relevant "national laws". This indicated that no law disallowed the marriage of a prisoner, as was indeed the case, since the laws on marriage concerned themselves mainly with bigamy, polygamy, marriageable age and the mentally subnormal, and did not refer to prisoners

The provisions of Art 12 were narrowly defined and not subject to limitation and the Golder case was not relevant. Furthermore the decision in Application No. 892/60 was irrelevant since it concerned the national laws of Germany, not the United Kingdom. The facts of the case were also different. Art. 12 had been misinterpreted in the Court of Appeal decision quoted by the Government. There were no conditions, either specific or implied, other than the two laid down in Art. 12. There was no mention of the "circumstances" in which people were placed. These had nothing to do with Art. 12. A sailor at sea might not be capable of exercising his right to marry, but this right was not diminished by the circumstances. Referring to the position of a soldier posted on active service, the applicant submitted that a person's entitlement to remain at home had nothing to do with his right to marry under Art. 12. This remained intact provided the conditions of Art. 12 were satisfied.

The applicant submitted that his basic right to marry was being thwarted. He wished to marry at the time of his choice, within reason, and not at the time chosen by the Government. His rights had been continually thwarted since March 1975.

Art. 12 was not subject to Art 5 or any other Article of the Convention. The applicant was not seeking permission to leave prison in order to marry He merely wished his right to marry to be acknowledged and grained. It was not necessary to leave prison in order to be married. Nothing in the Convention connected An. 12 with Aft. 5.

There was no evidence at all to support the suggestion by the Government that allowing a prisoner to marry would necessarily prejudice good order and discipline in prison. In this connection the applicant referred to the cases of two men who, he alleged, had been convicted of murdering their wives but had nevertheless been allowed to marry. He submitted that there had been many other examples but there had never been a single incident of conduct prejudicial to good order and discipline as a result. It could not possibly be suggested that his own marriage would have any effect on good order and discipline in Gartree Prison

Referring to the Government's suggestion that the refusal of facilities merely involved a delay on his marriage, and not a complete bar, the applicant submitted that a bar operative for such a long time (i.e. from 7 March 1975 to his release) was the same as a deprivation of his rights under Art. 12. Any "refusal" was per se a deprivation of a person's rights under Art 12. It would be different if there were a delay for administrative reasons but when the Government said that they would not grant a prisoner the right to marry, they were contravening An 12. They did not have the right under An. 12 to impose delay for the reasons given. The applicant satisfied the only two conditions for the exercise of rights under Art. 12.

The fact that the applicant would not be able to live with his wife whilst detained had nothing to do with Art. 12. If the Government were so concerned at the fact that a prisoner could not live with his wife, it must be asked why they had allowed certain persons serving life sentences to marry.

The fact that the Government referred to the "refusal" of facilities showed that their action contravened Art. 12. The applicant requested the Commission to disregard (he Government's observations and uphold his application.

In his oral submissions the applicant's representative suggested that the issue of law might now be greater than the issue of fact. The applicant was no longer able to exercise his right to marry in respect of the particular lady. However there was nothing abstract about his submissions. He felt a strong and justified sense of grievance at what had occurred. The issue was not whether his rights were being interfered with now, but whether there had in fact been an interference in the past.

At the time of his arrest the applicant had been living with his fiancée. There had been no impediment in law to their getting married and nor had there been until about April 1976. They had known each other for virtually the whole of their lives and, as stated in the applicant's petition to the Home Office of 7 March 1975, at the time of his arrest had considered themselves engaged to be married "in the near future, certainly within 6 months". The Home Office had replied to that petition that "in accordance with the regulations it is not possible to allow you temporary absence for the purpose of marriage ...". That was a slightly misleading suggestion, since it was not necessary to release a prisoner to enable him to marry. The applicant had attempted to write to the NCCL on the matter in April 1975, but the letter had been stopped. The refusal of the applicant's second petition, in April 1975, had led inexorably to a crisis in the relationship. Visits between the applicant and his fiancée had been supervised and listened in to by prison staff. It appeared that his fiancée had instanced the form of the Home Office refusals, in conversation with friends, as showing that the applicant had not really been trying. Her last visit to the applicant had been on 10 October 1975. Thereafter the applicant had received one or two letters from her, but about six months later he had heard that she had married someone else.

The applicant had had a real intention to marry. He had had a bad record and far from satisfactory early home life. He had, it was believed, been trying to make sensible and concrete plans for his future.

It was not clear how consistently the authorities had applied their own rules. The applicant made no firm submission under Art. 14 but suggested that this was a matter going to the nature of Art. 12. A terrible paucity of evidence was advanced in favour of the propositions in the Under Secretary of State's letter of 12 May 1975. It was not clear what was meant when it was said that it would be "impossible administratively". It was not even clear what the rules currently operative were. Certain recently reported cases indicated that they had been changed and whatever were previously thought to be insuperable administrative difficulties had faded. These cases showed the problems, which arose when major questions of civil or human rights were left within the discretion of official bodies, however well intentioned. This was not a matter regulated by law but by administrative discretion.

The Government's written observations on admissibility did not mention the domestic laws of marriage. There was nothing relating to the marriage of prisoners in the Marriage Act 1949 or the section on Husband and Wife in Halsbury's Laws of England (Third Edition, Vol. 19) which set out the English law of marriage in compendious detail. Nor was there anything about the right of the Home Office to prevent such marriage, until the case of Singh which had been relied on by the Government. The law set out certain restrictions on the right to marry. It referred to consanguinity and marriageable age. In the case of persons under the age of 18 it provided that refusal of parental consent could be overruled by a court. The law went to that length to avoid arbitrariness in respect of an especially important human right. It provided in detail for the forms and processes of marriage and the licensing and registration of premises where a marriage could lake place. Nothing in the law would preclude the chapel of any prison being registered in terms of S.41 of the Marriage Act as a place where marriage could lake place. Nor was there any apparent reason why a Superintendent or Registrar of Marriage might not have an office within a prison in terms of S 45 of the Act. Under the Ecclesiastical Licences Act of 1533. the Archbishop of Canterbury or his proper officers could grant a special licence authorising marriage at any convenient time or place. This could even be in a private house (Halsbury, op cit., Vol. 19, pp. 785 and 800). It was not the case that English law did not contemplate marriage in other than a public place. In any event there was nothing to prevent the Government from introducing legislation making it possible for marriages to take place in prison. Whilst the applicant submitted that such legislation was not necessary, it might make the matter perfectly clear.

Provided the requirements of the law in matters such as capacity and form were met, the fact that a man was subject to imprisonment in no way affected the validity of his marriage. The fact that the Home Office had refused permission would not affect the validity of a marriage if it were performed.

The Commission was not dealing with a case relating to the domestic law of marriage, but with an issue of executive discretion which involved the exercise of physical and concrete constraints upon an individual in custody over and above the deprivation of liberty. It might be that Art. 12 referred to marriage laws regulating marriage in a universal manner in the particular country, rather than such discretionary powers. The exercise of these discretionary powers had not been contrary to law and could not be challenged in the courts

The applicant made six submissions in law. In the first place he submitted that, to be lawful in terms of the Convention, the authorities' action must comply with the domestic law of marriage The domestic law of marriage did not contain the limitation contended for by the Government. The "law" referred to in Art. 12 was the law dealing with consent, marriageable age and other such matters. The discretionary system of controls maintained by the Home Office over prisoners was not national law governing the exercise of the right to marry within the meaning of Art 12.

Secondly the domestic law and its application must comply with Convention requirements and was subject to the supervision of the Commission and Court. It was not sufficient for a Government to show that its practice complied with domestic law

Thirdly, the applicant submitted that there was no implied limitation to the rights guaranteed in Art. 12 The Convention left no place for inherent limitations and in this respect the applicant adopted the argument in Jacobs : The European Convention on Human Rights, pp. 198-201. The Government's suggestion that limitations must be implied was contrary to a number of fundamental rules of construction. In particular words must be given their literal meaning, as was upheld in the Vienna Convention and elsewhere. Furthermore limitations were set out elsewhere in substantive Articles of the Convention and should not be implied where they were not set out. They should not be implied any more in Art. 12 than in respect of Art. 3. In the Golder case the Court had suggested that in the case of rights which the Convention "set forth without in the narrow sense of the term defining" there was room for limitations permitted by implication (Judgment of 21 February 1975, Series A, Vol. 18, para. 38). However, the Court had clarified what they meant by referring to the Belgian Linguistics Case, where the idea of "regulation", rather than "limitation", of a right had been used. Finally, the idea of implied limitation did not appear to have been used previously in relation to Art. 12 and it was questionable whether it was right as a matter of law to insert the idea now.

Fourthly, even if there might be limitations, no limitation such as that contended for by the Government would be valid. A limitation which prohibited the exercise of the right in toto for any prolonged period could not properly be called a limitation. A limitation was an action which regulated and set bounds to a right, not one which totally prevented its exercise. In the Golder case (sup. cit. paras. 39 and 40), the Court had been very cautious about formulating any general theory about implied limitations. What had been involved there was a limitation on the right of a prisoner to seek legal advice during a period of some 2 years and 3 months. At the end of that time he had been free to obtain advice. There had been a delay, but his right had not been destroyed. In the present case, the applicant had been stopped from marrying for a considerable period after his petition in March 1975 and at the end of the period his fiancée had no longer been there. His right had not only been interfered with, but by the nature of the situation it had been extinguished. By his imprisonment he had been effectively prevented altogether from exercising his right. The Court had said in the Golder case (para. 38) that any implied limitation must never injure the substance of the right. This was clearly a case where the substance of the right had been injured.

Fifthly the applicant submitted that any implied limitation must be compatible with the objectives of public policy expressed in the Convention and analogous standards pertaining to the purpose and nature of imprisonment and the importance of the family unit. Whilst Art. 12 might lack exactitude; the drafters clearly had in mind the exercise of an individual choice. It was not the business of the state to dictate whom a person should marry or when he should marry or when it was good or bad for him to marry. Rule 1 of the United Kingdom Prison Rules stated that the purpose of prison training and treatment should be to encourage and equip the inmates to lead a good and useful life. Rule 31 also provided for prisoners to be encouraged to maintain outside relationships which would promote the interests of his family and his own social rehabilitation. The applicant also referred to Rules 58-62 of the Standard Minimum Rules for the Treatment of Prisoners {Resolution 73 (5) of the Committee of Ministers of the Council of Europe) and a published statement by Lord Kilbrandon to the effect that imprisonment should involve no more than the deprivation of liberty.

Finally, the applicant submitted that each proposed limitation which a Government might advance must be strictly proved to be necessary within the framework of a legitimate policy regarding prisoners The evidence advanced by the respondent Government as to what was necessary in the context of prisons and marriage was not sufficiently convincing.

The applicant invited the Commission to declare the application admissible and to seek 10 obtain a settlement in accordance with Art 28 0/ the Convention.

THE LAW

2. The applicant complains that he was denied the possibility of marrying whilst serving his prison sentence and alleges that his right to marry as guaranteed by Art. 12 of the Convention was thus violated. The respondent Government have denied that there was any violation of the applicant's rights under this Article and have submitted that his complain is manifestly ill founded since Art. 12 does not confer an unrestricted right to marry on a detained person.
3. Art. 12 of the Convention is in the following terms :

"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."

3 The Commission first recalls certain salient facts. The applicant first petitioned the Home Secretary for permission to marry on 7 March 1975 and was refused temporary release for that purpose on 21 March 1975. The decision which was maintained subsequently was taken in accordance with the then current practice of the prison authorities. Under this practice prisoners were not, save in exceptional circumstances irrelevant to the present case, allowed temporary release to marry unless the effect of the marriage would be to legitimise a child (born or unborn The applicant's marriage would not have had this effect.

Whilst there is some dispute between the parties as to whether English law prevents a marriage from being celebrated in a prison, it is clear that no facilities to marry in prison were available to the applicant. The effect of the decision was thus that he was unable to marry until such time as he found himself outside prison (on home leave or parole or pre-release employment) and was able to make the necessary arrangements.

In the applicant's case the earliest dale on which he would have been eligible for parole was after one-third of his sentence, namely in June 1976. It appears that he first asked 10 be considered for parole in December 1976, but that it was not granted. The possibility of home leave would first have arisen in May 1977, although the applicant did not, in fact, take it for the first time until August 1977. Since July 1977, when he moved to a pre-release hostel, he has been free to marry. When his petition was refused in March 1975, the applicant was thus faced with a situation where he had no possibility of marrying for a period of at least 15 months or over 2 years if (as eventually occurred) he were not to be granted parole.

The applicant's submissions indicate that he wished to marry, and was in a position to marry when he made his petition in March 1975. However the relationship between the applicant and his fiancée subsequently ended. It is not clear precisely when this occurred, but the applicant has stated that he last received a visit from her in October 1975, that he received one or two letters thereafter and that he heard some six months later that she had married another person.

4. It is not in dispute that the Home Secretary's decision was in accordance with English law and that the applicant could not have challenged it successfully in court. The application was introduced within 6 months of the Home Secretary's decision and the Commission finds that the requirements of Art. 26 have been complied with.
5. In support of their contention that the application is manifestly ill-founded the respondent Government have submitted that the right to marry, as guaranteed by Art 12, is not an absolute one. They have suggested that the applicant's right to marry was not interfered with, but that the applicant was simply in a situation (comparable to that of a soldier on active service, a sailor at sea or a priest) where he was unable to exercise the right. They have submitted that national law may regulate matters such as the time and place at which a marriage may be celebrated and that the applicant, by his own conduct, had put it out of his reach to comply with the requirements of relevant United Kingdom law. This required that a marriage be celebrated in a public place. They have submitted furthermore that the rights guaranteed by Art. 12 may be subject to implied limitations and that the circumstances of a prisoner, including the requirements for order in prisons, as also the provisions of Art. 5 (II (a) of the Convention, must be taken into account. Art 12 does not, in the Government's submission, guarantee the right to marry at a particular time and place. The applicant's right to marry was delayed but not otherwise infringed. There was no violation of Art. 12 in the Government's submission.
6. The Commission does not consider that the position of a convicted prisoner is necessarily comparable to that of a person who, voluntary or otherwise, is placed in circumstances which make it impossible for him to marry. Nor is it necessarily analogous to that of a person such as a priest who decides, for religious or other reasons, not to exercise his right to marry. A prisoner may wish to marry, as the present applicant apparently did, notwithstanding that he is deprived of his liberty. It is possible for the authorities to permit his marriage, either by allowing him to be escorted out o< prison, as is the practice in the United Kingdom when permission is given, or by making provision for marriage within prison, as is done in a number of other countries A prisoner's ability to exercise his right to marry whilst he is deprived of his liberty may thus arguably be a matter within the control of the state, similarly to his ability to exercise other rights such as access to the courts under Art. 6, and not dependent solely on the factual circumstances in which he is placed.
7. Art. 12 guarantees the right to marry "... according to the national laws governing the exercise of this right". It contains no other express qualification or limitation of the right. There was no impediment under English law to the marriage of the present applicant. He was of full legal capacity and had the right to marry provided he was able to exercise it. However no provision of English law expressly governs the exercise of this right by prisoners. The question whether a prisoner is to be allowed the necessary facilities to do so is decided by the Home Secretary and prison authorities in the exercise of discretionary administrative powers. Assuming that the respondent Government, and not the applicant himself, were responsible for his inability to marry, a further question would therefore arise as to whether the decision to refuse him the necessary facilities was permissible under the Convention on the basis that it was a measure taken under a law governing the exercise of the right to marry within the meaning of Art. 12, or by virtue of any implied limitation on the right to marry.
8. The Commission recalls the jurisprudence of the European Court of Human Rights in relation to the question of limitations on the right to education under Art 2 of Protocol No. 1, and on the right of access to a court under Art. 6 (1). It recalls in particular that the Court held that a measure which regulates the exercise of a right must not injure the substance of the right itself (See Belgian Linguistics Case, Judgment of 23 July 1968, Series A, No. 6, p. 32, para. 5; Colder Case, Judgment of 21 February 1975, Series A, No. 18, pp. 18-19, para 38).

h is true that in the present case there was no legal impediment on the applicant's marriage and that, in a sense, his ability to exercise his right was merely delayed. However this does not necessarily exclude the possibility of an injury to the substance of his right to marry In this connection the Commission recalls that the Court also held in the Golder case that

"Hindrance in fact can contravene the Convention just like a legal impediment ;" and that -

" . hindering the effective exercise of a right may amount to a breach of that right, even if the hindrance is of a temporary character " (Golder case, sup cit., para. 26)

9. Having regard to the above considerations and jurisprudence, the Commission considers that the applicant's complaint that he was denied the possibility of marrying during his sentence raises substantial questions under Art. 12 of the Convention concerning, in particular, the responsibility of the respondent Government for the applicant's inability to marry, and the question whether or not the refusal of facilities was in violation of the applicant's right to marry. The application cannot therefore be described as manifestly ill-founded within the meaning of Art. 27 (2). No other ground of inadmissibility appears and the Commission therefore finds that this complaint is admissible.
10. Finally, having regard to the terms of the submissions made by the applicant's representative at the hearing on admissibility, the Commission finds that it is not called upon to decide on the admissibility of any separate complaint under Art. 14 of the Convention in conjunction with Art. 12 in connection with the consistency with which the practice as to granting of permission to marry was applied as between different prisoners.

For these reasons, the Commission

DECLARES ADMISSBLE , without prejudging the merits, the applicant's complaint that he was denied the possibility of marrying during his prison sentence.