28 August 2009
by H.S. and Others
against the United Kingdom
lodged on 26 March 2009
STATEMENT OF FACTS
The first applicant, H.S., is a British national who was born in 1943. The other applicants are his wife, R.S, and their two daughters, T.S. and M.S, who are all Dutch nationals and were born in 1968, 1993 and 1994 respectively. H.S. is currently detained at HMP Ashwell in England. The other applicants live in the Netherlands. The applicants are represented before the Court by Ms N. Mole of the AIRE Centre, a non-governmental organisation based in London.
The circumstances of the case
1. Conviction and request for transfer
The facts of the case, as submitted by the applicants, may be summarised as follows.
The first applicant, H.S., has been resident in the Netherlands since 1989. He married R.S. in 1993.
H.S. was arrested in Bournemouth on 8 August 2004. He was convicted in the United Kingdom on 2 December 2005 for unlawfully importing a class A drug. He was sentenced to 16 years and four months imprisonment. He did not appeal his conviction or sentence following advice from his lawyers that to do so would substantially delay any application for transfer to the Netherlands, where he hoped to return to serve his sentence in order to be closer to his family.
A Dutch co-defendant, who was convicted before H.S., applied for transfer back to the Netherlands immediately after conviction and sentencing. He was transferred to the Netherlands within six months of his application and at the same time was served with a deportation order.
In April 2006, H.S. expressed an interest to the Cross Border Transfer Section (“CBTS”) of the National Offender Management Services (“NOMS”) in being transferred to the Netherlands to serve his sentence there, under the Convention on the Transfer of Sentenced Persons 1983 (“Transfer of Prisoners Convention”).
On 26 July 2006, the CBTS indicated that the request for repatriation to the Netherlands had been referred by them to the Dutch authorities for their consent.
The Dutch Directorate General for the Administration of Justice and Law Enforcement indicated by letter of 30 November 2006 to NOMS that they consented to the transfer of H.S. They stated that, upon transfer, they would apply Article 9(1)(b) of the Transfer of Prisoners Convention and convert the sentence imposed by the British courts into an equivalent sanction under Dutch law. Under Dutch law, the relevant statute which governed sentencing for drug trafficking offences was the Netherlands Opium Act. Under section 10(5) of that Act, the maximum sentence for trafficking over 1kg of heroin into the Netherlands was twelve years.
According to the Dutch Ministry of Justice, Cross Border Transfer Section, the domestic practice in the Netherlands is for prisoners to be eligible for release after serving two thirds of their sentence under Article 15 of the Criminal Code. Accordingly, a sentence of twelve years would result in a prisoner serving eight years before consideration for early release. In the United Kingdom it is normal practice for a prisoner to be considered for resettlement release after serving half of his sentence. If the Dutch courts decided to award the harshest penalty available under Dutch law, H.S. would be likely to spend the same amount of time in prison as he would have done had he remained in the United Kingdom.
The CBTS wrote to H.S. on 19 December 2006 refusing his request for repatriation. In its letter, it stated that the Secretary of State had considered the fact that H.S. was resident in the Netherlands prior to his arrest for the offence for which he was now serving a prison sentence, that he was married to a Dutch national and that his wife and his two children resided in the Netherlands. However, it concluded that H.S. would likely be required to serve a sentence of a lesser duration in the Netherlands. As a British citizen he would be free to return to the United Kingdom at a time when, if not transferred, he would still be detained in prison in the United Kingdom. The CBTS pointed out that the United Kingdom Government could not make a deportation order against a British citizen, as they could against foreign nationals.
H.S.’s representatives replied on 29 January 2007, arguing that the distinction made by the CBTS between H.S. and his co-defendants on grounds of nationality was not sufficient to justify the refusal to transfer H.S. It was submitted that the ability of H.S.’s co-defendant, who had been transferred to the Netherlands, to return to the United Kingdom after release from prison was not an issue at the discretion of the United Kingdom authorities, but one that was governed by strict provisions of EU law under Article 18 of the EC Treaty, which guarantees free movement of persons. Although restrictions on free movement on grounds of public security, public policy or public health are permissible, any restriction on the grounds of public policy or public security must be justified by the State in question on the basis that the individual presents a “genuine and sufficiently serious threat affecting one of the fundamental interests of society”, as held by the European Court of Justice in Case 30/77 R v Bouchereau. The European Court of Justice subsequently held in Case C-348/96 Calfa, that the automatic deportation and ban on re-entry in a case involving a drugs offence did not fulfil the requirements of EC law as, despite the danger to society presented by illegal drugs, such automatic expulsion did not consider the present threat nor the personal conduct of the individual concerned.
On 2 April 2007, the CBTS responded with a further refusal to transfer H.S. to the Netherlands. It argued that the position of the co-defendant was not comparable to that of H.S. as the co-defendant did not have an automatic right of return to the United Kingdom, but had to invoke successfully his rights under EC law before he could return.
Solicitors for H.S. wrote to the CBTS on 8 May 2007 with further representations about his ill-health. They submitted that H.S. would be willing to surrender travel documents on transfer as an assurance that he would not return to the United Kingdom. Five officers at HMP Brixton wrote letters of recommendation in support of his application for transfer, detailing his very positive involvement in the community of the prison.
The CBTS replied on 14 August 2007 with a further refusal to transfer.
H.S. began judicial review proceedings on 23 August 2007. Leave to apply for judicial review was granted on 20 December 2007, with Mrs Justice Black noting:
“It seems to me that the Detailed Statement of Grounds sets out arguable grounds for judicial review, particularly relating to the sufficiency of the reasons given by the defendant for the differential treatment of the claimant’s Dutch co-defendant who has been repatriated and for the interference with the claimant’s family life.”
After a substantive hearing, Lord Justice Dyson refused the application for judicial review on 1 May 2008. He referred to the Commission’s decision in P.K., M.K. and B.K v. the United Kingdom, No. 19085/91 (dec.), 9 December 1992, where the Commission concluded that only in exceptional circumstances would the detention of a prisoner a long way from home or family infringe the requirements of Article 8 of the Convention. Dyson LJ considered that the Secretary of State was entitled to conclude that if H.S. were transferred to the Netherlands, he would return to the United Kingdom within the following five to eight years and reoffend. In reaching this conclusion, he had regard to the seriousness of the offence in question and the fact that H.S had a number of previous convictions, the most recent of which was admittedly some thirty years ago. Further, Dyson LJ found the decision to be proportionate, notwithstanding its impact on the right of H.S. to see his family members and the effect of a lack of contact on his two daughters. As to whether the Secretary of State was entitled to distinguish between the case of H.S. and that of his co-defendant, Dyson LJ held that the crucial point was that a deportation order was made against the co-defendant, whereas no such order could be made against H.S. in light of his British citizenship. He was not persuaded that the Secretary of State would be unable to defend the deportation order if an application were made to have it revoked.
H.S. sought leave to appeal.
In August 2008, H.S. was recategorised as a Category C Prisoner (the second lowest risk categorisation) and consequently transferred to HMP Ashwell. He was subsequently given a job as a gardener (a position usually reserved for Category D, the lowest security risk categorisation of prisoners). Two officers at HMP Ashwell have written letters of commendation in support of his request for a transfer.
On 21 November 2008, H.S. made a fresh request to be transferred to the Netherlands. This request is outstanding.
On 19 February 2009, the Court of Appeal refused leave to appeal in the judicial review proceedings, holding that the Secretary of State’s decision was fair and justified. Sullivan L.J. considered in particular that the argument that there was no guarantee that the co-defendant could be prevented from re-entering the United Kingdom, although strictly correct, was “wholly unrealistic”. In his view, in light of all the circumstances of the case, there was very little prospect that the co-defendant’s deportation order would be revoked.
In April 2009, there were serious riots at HMP Ashwell. H.S. did not take part in the riots but went to the assistance of a female prison officer. As a consequence, the Prison Residential Officer wrote a letter commending his good behaviour and offering full support for his transfer to the Netherlands.
2. Effect of the refusal to transfer H.S.
R.S., T.S. and M.S. live in the Netherlands. It is difficult for them to maintain regular visits with H.S. due to work and educational commitments and the high financial costs involved. As a result of the costs incurred in the proceedings in the United Kingdom domestic courts in an effort to secure the repatriation of H.S. to the Netherlands, R.S. can no longer afford to visit him. As R.S., T.S. and M.S. live outside the United Kingdom, they are not eligible for financial support under the Assisted Prison Visits Scheme. Under that scheme, residents of England, Wales and Scotland are entitled to financial assistance with the cost of travel, accommodation, childcare and food when travelling to visit relatives in prison. As a result, in the past 14 months, H.S. has had three visits from R.S., and T.S. and M.S. have not been able to afford to visit him.
As his family reside outside the United Kingdom, H.S. is given a GBP 5 phone card once a month in partial compensation for him not being able to receive the weekly two-hour family visits to which he is entitled. At the tariff to the Netherlands from the prison phone, this allows him to make one five minute phone call to his wife and two children once a month. It is against the prison rules for phone cards to be purchased outside the prison estate and sent to a prisoner, and accordingly this is the maximum time he is able to speak to his family for each month.
Were H.S. to be transferred to a Dutch prison to serve his sentence he would be able to receive family visits for a minimum of one hour per week, as provided for by Article 38 of the Dutch Penitentiary Principles Act (Penitentiare Beginselenwet). The Dutch Penitentiary Measure (Penitentiare Maatregel) provides for the minimum number of hours to be allocated to a prisoner for activities and visits each week according to their security status. H.S. would be entitled to a minimum of ten minutes of phone conversation with one or more persons per week.
H.S. also suffers from two serious health conditions. The first is paroxysmal atrial fibrillation, a serious heart condition for which he requires extensive surgery. While he is currently being treated with a number of different medications, the symptoms are not entirely controlled and as a result he has been hospitalised twice in the past three months. He is reluctant to undergo the surgery he requires until such time as his family can be nearby for support during the recovery process, as there is a significant risk that he will suffer a transient worsening in his condition for the first few weeks after surgery. The prison where he is currently detained has no hospital wing. In the past month, H.S. has been advised by his doctor that his heart surgery is urgent and should not be delayed much further or there may be serious implications for his health. The second condition is blindness in his right eye as a result of the failure to diagnose and treat an eye condition, a detached retina, whilst he was detained at HMP Brixton. This makes reading and writing particularly difficult for him and exacerbates the problems he faces in maintaining effective contact with his family.
Relevant domestic law and practice
1. The United Kingdom Prison Rules
The United Kingdom Prison Rules state in Rule 4 that:
“1) Special attention shall be paid to the maintenance of such relationships between a prisoner and his family as are desirable in the best interests of both.
(2) A prisoner shall be encouraged and assisted to establish and maintain such relations with persons and agencies outside prison as may, in the opinion of the governor, best promote the interests of his family and his own social rehabilitation.”
2. The Assisted Prison Visits Scheme
In recognition of the importance of maintaining the prisoner’s contact with his family during detention, the United Kingdom Prison Service has introduced the Assisted Prison Visits Scheme under Prison Service Order 4405. Paragraph 1.2 of this Order states:
“The aim of the assisted prison visits scheme is to promote family ties and reflect the Prison Service Mission Statement by ‘...helping prisoners lead law abiding lives in prison and upon release’. The principles on which the scheme is operated are to ensure a fair balance is struck between safeguarding public monies and ensuring that family ties are maintained.”
C. Relevant international and European law
1. International conventions
a. The UN Standard Minimum Rules for the Treatment of Prisoners
The UN Standard Minimum Rules for the Treatment of Prisoners 1955 provide in Article 37:
“Prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits.”
b. The Convention on the Rights of the Child
The Convention on the Rights of the Child 1989 provides in Article 9(3) that:
“State Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child’s best interests.”
2. Council of Europe measures
a. The Council of Europe Convention on the Transfer of Sentenced Persons 1983
The Transfer of Prisoners Convention, as given effect in the United Kingdom by the Repatriation of Prisoners Act 1984, provides a formal mechanism by which prisoners can be transferred from the United Kingdom to other contracting States.
The Explanatory Report to the Convention states at paragraph 8 that the purpose of the Convention is:
“to facilitate the transfer of foreign prisoners to their home countries.”
Paragraph 9 of the Explanatory Report states:
“In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internationalisation of crime. As penal policy has come to lay greater emphasis upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian considerations: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned.”
The preamble to the Convention itself states, inter alia, that:
“Considering that such co operation should further the ends of justice and the social rehabilitation of sentenced persons;
Considering that these objectives require that foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentences within their own society; and
Considering that this aim can best be achieved by having them transferred to their own countries ...”
Article 2 of the Convention provides:
“1. The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.
2. A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he may express his interest to the sentencing State or to the administering State in being transferred under this Convention.”
Article 3 sets out various conditions which must be met in order for a person to be transferred. It stipulates that a sentenced person may be transferred under the Transfer of Prisoners Convention if he is a national of the receiving State. It also provides that the sentencing State and the receiving State must both consent to the transfer. Under Article 3(4), member States are given the option of lodging a declaration defining the term “national” for the purposes of the Convention. The explanatory report indicates that this was intended to allow States to extend the application of the Convention to categories of non-nationals should they wish to do so. Neither the United Kingdom nor the Netherlands have lodged a declaration under this article.
Under Article 9, where a person is repatriated, the receiving State has two options in dealing with the unexpired part of the sentence: (i) continued enforcement of the existing sentence whereby the receiving State is bound by the legal nature and duration of the sentence as determined by the sentencing State, subject to adaptation in certain circumstances; or (ii) conversion of the sentence by re-sentencing subject to certain qualifications.
b. The European Prison Rules
The 1987 version of the European Prison Rules (Rec (87) 3) stated, at Rule 43:
“43.1. Prisoners shall be allowed to communicate with their families and, subject to the needs of treatment, security and good order, persons or representatives of outside organisations and to receive visits from these persons as often as possible.”
The new European Prison Rules (Rec (2006) 2) aby the Committee of Ministers on 11 January 2006, state at Article 24:
“24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons.
24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.
24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.”
c. The European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“CPT”)
In its 2ndGeneral Report (CPT/Inf (92)3), the CPT stated:
“51. It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations.”
The CPT emphasised the particular significance of the maintenance of family visits for prisoners who are detained far from their families and stated:
“The CPT wishes to emphasise in this context the need for some flexibility as regards the application of rules on visits and telephone contacts vis-à-vis prisoners whose families live far away (thereby rendering regular visits impracticable). For example, such prisoners could be allowed to accumulate visiting time and/or be offered improved possibilities for telephone contacts with their families.
... Naturally, the CPT is also attentive to the particular problems that might be encountered by certain specific categories of prisoners, for example: women, juveniles and foreigners.”
d. Council of Europe Recommendation (Rec (2003) 23) of the Committee of Ministers to member states on the management by prison administrations of life sentence and other long term prisoners
The Council of Europe Recommendation on the management by prison administrations of life sentences and other long term prisoners states in paragraph 22:
“Special efforts should be made to prevent the breakdown of family ties. To this end:
prisoners should be allocated, to the greatest extent possible, to prisons situated in proximity to their families or close relatives;
letters, telephone calls and visits should be allowed with the maximum possible frequency and privacy. If such provision endangers safety or security, or if justified by risk assessment, these contacts may be accompanied by reasonable security measures, such as monitoring of correspondence and searches before and after visits.”
3. EU law
a. Framework Decision on the application of the principle of mutual recognition to judgments imposing custodial sentences
The preamble to the European Union Framework Decision 2008/909/JHA on the application of the principle of mutual recognition to judgments in criminal matters imposing custodial sentences involving deprivation of liberty for the purpose of their enforcement in the European Union (“the Transfer of Prisoners Framework Decision”) states at Recital 9:
“Enforcement of the sentence in the executing State should enhance the possibility of social rehabilitation of the sentenced person. In the context of satisfying itself that the enforcement of the sentence by the executing State will serve the purpose of facilitating the social rehabilitation of the sentenced person, the competent authority of the issuing State should take into account such elements as, for example, the person’s attachment to the executing state, whether he or she considers it the place of family, linguistic, cultural, social or economic and other links to the executing state.”
Under Article 4(1) and 4(5), the decision to forward a judgment for execution in another Member State is within the sentencing State’s discretion. However, once the judgment is forwarded, there are limited grounds for a receiving State to refuse to recognise and enforce the sentence. The consent of the convicted person is required before a transfer can take place, except where the transfer is to his State of nationality and in other limited cases. The Framework Decision itself provides expressly for the transfer of a sentence to a State which is not the State of nationality: Article 4(1)(c) allows a judgment and transfer request to be forwarded to any Member State which consents to them being forwarded.
b. Free movement under EU law
The Treaty establishing the European Community (“the EC Treaty”) sets out the principle of free movement of persons within the territory of the European Union. Article 18 proclaims that citizens of the Union shall have the right to move and reside freely within the territory of the Member States, subject to any limitations set out in the EC Treaty or measures adopted to give effect to the right. Article 39 stipulates that there shall be free movement of workers, subject to limitations on grounds of public policy, public security or public health. Article 46 provides that the free movement of persons provisions “shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.” Secondary legislation was subsequently adopted to implement the right to free movement. In particular, Article 3 of Directive 64/221/EC provides as follows:
“1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.”
“... Article 3(2) of Directive No 64/221/EEC, according to which previous criminal convictions do not in themselves constitute grounds for the imposition of the restrictions on free movement authorized by [Article 39] of the Treaty on grounds of public policy and public security, must be interpreted to mean that previous criminal convictions are relevant only in so far as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy.
... In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society.”
Subsequently, in Case C-348/96 Calfa, the European Court of Justice reiterated that the concept of public policy could be relied upon in the event of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society. The court accepted that a Member State was entitled to consider that the use of drugs constituted a danger for society such as to justify special measures against foreign nationals who contravened its laws on drugs, in order to maintain public order. However, the public policy exception had to be interpreted restrictively. In this regard, previous criminal convictions could only be taken into account insofar as the circumstances which gave rise to the conviction were evidence of personal conduct constituting a present threat to the requirements of public policy.
Directive 2004/38/EC of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States repealed the previous piecemeal legislation in the field and set out a comprehensive free movement regime. Article 27 provides that free movement and residence may be restricted on grounds of public policy, public security or public health. Article 27(2) stipulates that:
“Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”
Article 32(1) provides that where a person has been excluded from the territory of a Member State on grounds of public policy or public security, he may submit an application for the exclusion order to be lifted after a reasonable period and in any event after three years from the date of the enforcement of the exclusion order.
The applicants complain under Article 8 of the Convention that the continued refusal to consent to the transfer of H.S. to serve the remainder of his sentence in the Netherlands constitutes an unjustifiable interference with their Article 8 rights to respect for family and private life. The applicants further complain that the continued refusal to permit H.S. to transfer his sentence to the Netherlands constitutes an interference with their “moral and physical integrity”.
The applicants also contend that there has been an unjustified interference with their Article 8 rights taken in conjunction with Article 14 as H.S. has been discriminated against on grounds of his nationality.
H.S. alleges a violation of Article 6 in respect of the judicial proceedings refusing his transfer on the ground that the delay in the present case has violated the reasonable time requirement. He also complains under Article 6 § 2 that his right to be presumed innocent was violated by comments made by the judge during the sentencing procedure, which were repeated to his detriment in the transfer proceedings.
QUESTIONS TO THE PARTIES
In particular, is the refusal necessary in terms of Article 8 § 2?
In particular, is the difference in treatment justified given the limitations under EU law on the United Kingdom’s right to restrict the entry of EU citizens into United Kingdom territory?