Silver v United Kingdom (A/161)

• Jurisdiction: Derecho Internacional
• Court: European Court of Human Rights
• Judgment Date: 24 October 1983
• Date: 24 October 1983

Silver and Others Case

(Chamber composed of: Wiarda, President; Thór Vilhjálmsson, Gölcüklü, Matscher, Pettiti, Sir Vincent Evans and Russo, Judges)

European Court of Human Rights.

State responsibility — Nature and kinds of — For breaches of treaty obligations — European Convention on Human Rights, 1950 — Interference with prisoners' mail — Whether a breach of right to respect for correspondence — Right to an effective remedy before a national court — Internal channels of complaint — Petitions to Home Secretary and court proceedings — Whether an effective remedy — Refusal of petitions for permission to seek legal advice — Whether a violation of right of access to courts — Subsequent modifications to law and practice — Whether remedying previously existing breaches of Convention — Just satisfaction in respect of breach established

State responsibility — Damages (Measure of damages) — Grounds for awarding damages — European Convention on Human Rights, 1950 — Article 50 — Just satisfaction in respect of breaches established — General non-pecuniary damages — Whether finding of breach adequate just satisfaction — Special non-pecuniary damages — Legal costs and expenses referable to proceedings before Convention institutions

Disputes — Other international courts — European Court of Human Rights — Scope of review — Subsequent modifications of State party's law and practice — Whether remedying previously existing breaches of European Convention on Human Rights, 1950

The individual in international law — In general — Human rights and freedoms — Interference with prisoners' correspondence — Whether a breach of right to respect for correspondence — European Convention on Human Rights, 1950 — Article 8 — Whether interferences justifiable — Whether in accordance with the law — Whether law adequately accessible and reasonably foreseeable — Ministerial directives — Whether to be taken into account — Need for safeguards against abuse of executive discretion — Legitimate aim of interferences with correspondence — Whether necessary in a democratic society

Freedom of expression — Article 10 — Whether necessary to examine issue — Right to an effective remedy before a national court — Article 13 — Whether necessary to examine issue in conjunction with Article 6(1) or Article 10 — Internal channels of complaint — Petitions to Home Secretary and court proceedings — Whether effective remedies — Scope of jurisdiction and enforceability of decisions — Refusal of petition for permission to seek legal advice — Whether a violation of right of access to courts — Article 6(1) — Subsequent modifications to law and practice — Whether remedying previously existing breaches of Convention — Whether within scope of review of Court

Article 50 — Just satisfaction in respect of breaches established— General non-pecuniary damages — Whether finding of breach provides adequate just satisfaction — Special non-pecuniary damages — Assessment in light of particular circumstances — Legal costs and expenses referable to proceedings before Convention institutions

Summary: The facts:—The seven applicants, six of whom had been detained in prisons in the United Kingdom, complained of interference by the prison authorities with their correspondence. Responsibility for prisons and prisoners in England was vested by the Prison Act 1952 in the Home Secretary. He issued directives to prison governors who were required to comply with them even though they did not purport to have the force of law. After the events which gave rise to the case the directives on prisoners' correspondence were substantially revised. At the time the case arose, an inmate who was aggrieved by a decision to stop his correspondence could complain to the prison governor, the Board of Visitors (which only had advisory powers) or a visiting officer of the Home Secretary or he could petition the Home Secretary. The Home Secretary examined whether the directives had been complied with and in practice only rarely departed from them. In addition, an inmate could complain to the Parliamentary Commissioner for Administration. However, the Commissioner could not review the merits of a discretionary decision and he could not grant direct relief for maladministration. An inmate could also institute court proceedings. The courts had jurisdiction to review whether the Prison Rules were being complied with.

Proceedings before the Commission: The applicants' principal complaint was that the control of their correspondence by the prison authorities constituted a breach of their right to respect for correspondence and of their freedom of expression, guaranteed by Articles 8 and 10 of the European Convention on Human Rights, respectively. They also alleged that, contrary to Article 13, no effective domestic remedy existed for the aforesaid breaches. In addition, Mr Silver claimed that he had been denied access to the courts, in violation of Article 6(1), on account of the refusal of two petitions for permission to seek legal advice. The Commission expressed the opinion that the censorship of mail constituted a violation of the applicants' right to respect for correspondence, that there had been a violation of Mr Silver's right of access to the civil courts and that there had been an absence of effective domestic remedies for the applicants' claims. It referred the case to the Court. The Government of the United Kingdom did not contest many of the findings and asked the Court to take notice of the revised directives on prisoners' correspondence which it claimed remedied the breaches of the Convention which had previously existed.

Held (unanimously):—

I.The judgment of 25 March 1983 (Merits)

(1) The Court was not empowered to review the new control régime introduced after the events which gave rise to the case, but noted with satisfaction the changes made to ensure observance of the Convention engagements.

(2) There was a violation of Article 6(1), because Mr Silver's petitions for permission to seek legal advice had been refused. The Court was obliged to rule on this aspect notwithstanding the subsequent modifications to the law and practice since the GolderINTL1 judgment of 1975.

(3) In order for the interference with correspondence to have been ‘in accordance with the law’, as required by Article 8, they had to have a basis in domestic law, the law had to be adequately accessible and the consequences of conduct had to be reasonably foreseeable. The measures complained of were in conformity with English law. The Prison Act and Prison Rules were adequately accessible but the unpublished guides and directives to officials were not. In assessing foreseeability, Ministerial directives establishing an

administrative practice could be taken into account to the extent that the prisoners concerned were sufficiently aware of their contents. It was not essential for conditions and procedures governing interferences to be embodied in the substantive law itself. There was a need, especially where the executive enjoyed a wide discretion, as in this case, for safeguards against abuse but these did not have to be incorporated in the actual text which authorized the interference. In so far as the mail was interfered with on grounds which were not foreseeable, this was not done in accordance with the law and was therefore a violation of Article 8(1). The legitimate aim of the interference under Article 8(2) was not disputed. Certain restrictions on correspondence imposed by prison authorities were not ‘necessary in a democratic society’ but others were justifiable for the prevention of disorder and crime. In the light of the above principles the stopping of 57 out of the 62 letters in respect of which complaint was made was not necessary in a democratic society and there was therefore a violation of Article 8 in each case.

(4) In the context of correspondence the right to free expression under Article 10 was guaranteed by Article 8 and it was therefore not necessary to examine this issue.

(5) The requirements of Article 13 were less strict than, and here absorbed by, those of Article 6(1). Furthermore, since Article 8 overlapped with Article 10 in the present case, there was no need to examine the issue of Article 13 in conjunction with Article 6(1) or Article 10. Applications to the Board of Visitors or to the Parliamentary Commissioner were not an ‘effective remedy’ since they did not have the power to render binding decisions. Where a complaint as to the validity of directives was made to the Home Secretary, he was insufficiently independent to be considered an effective remedy. It was otherwise where the complainant alleged that a measure of control resulted from a misapplication of one of those directives. The English courts could only review the measures on the ground that they had been taken arbitrarily, in bad faith, for an improper motive or were ultra vires. There was consequently a violation of Article 13 in all instances where Article 8 was violated and in one of the remaining cases.

(6) The question of the application of Article 50 was reserved.

The applicant claimed, as just satisfaction under Article 50, general damages for violations of their rights and reimbursements of specified costs and expenses. A claim for 'special' damages was put forward by three applicants.

Held (unanimously):—

II. The judgment of 24 October 1983 (Application of Article 50)

The claim by all applicants for general non-pecuniary damages was rejected. The finding in the earlier judgment of a breach of their rights already provided adequate just satisfaction. The claim by three applicants for “special” non-pecuniary damages was rejected in the light of the particular circumstances. The claims by all applicants in respect of costs and expenses referable to proceedings before the Commission and the Court were accepted with certain exceptions.

Declaration of Judge Thór Vilhjálmsson: One of the points decided concerned a claim made...