CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial } The European Commission of Human Rights sitting in private on 13 May 1986, the following members being present:                 MM. C. A. NØRGAARD, President                   J. A. FROWEIN                   F. ERMACORA                   E. BUSUTTIL                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   G. BATLINER              Mrs. G. H. THUNE               Sir Basil HALL                 Mr. H. C. KRÜGER Secretary to the Commission   Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 21 March 1985 by W.B. against the United Kingdom and registered on 29 April 1985 under file No. 11516/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having regard to:   -        the Commission's decision of 10 July 1985 that notice should be given to the respondent Government of the application and that they should be invited to submit their observations in writing on its admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules of Procedure;   -        the respondent Government's observations of 30 October 1985 and those of the applicant's representatives in reply of 21 January 1986;   Having deliberated;   Decides as follows:   THE FACTS   The facts, as they have been submitted on behalf of the applicant, a British citizen born in 1930, whose home is in Inverness, by his representative Mr. David Watt, solicitor of Inverness, may be summarised as follows:   The applicant's wife was murdered on 31 March 1984.   The circumstances surrounding the last hour and a half of her life are unclear.   She was certified dead at 12.20 am, the actual time of death being estimated to have been at midnight.   It appears that she was murdered in a block of flats and was dragged out of the building and into the road.   She had been hit on the head with a candle holder and her throat was cut, severing her windpipe and major arteries.   In the previous part of the evening the applicant's wife had been met by her subsequent assailant, D, and his uncle and aunt in a bar.   They all went together to the flat at approximately 9.50 pm and D's uncle and aunt left at approximately 10.40 pm, the arrangement being that the applicant's wife and D would follow them later to another bar.   On 2 April 1984 the Procurator Fiscal at Inverness instructed two pathologists to conduct a post mortem examination of the deceased. The examination   was conducted in a local hospital on the same day; the pathologists reported the cause of death as being head and neck injuries.   On 3 April 1984 the Procurator Fiscal told D's solicitors that they might conduct a post mortem examination.   A second post mortem examination was accordingly conducted on 5 April 1984 and the deceased's body was released to the applicant for burial on the same day.   On 5 April 1984 the pathologists reported their summary opinion to the Procurator Fiscal as to the cause of death.   They stated that the deceased had suffered severe injuries to the head and face from a blunt instrument, sufficient to cause fractures of the skull and facial bones, with underlying bruising of the brain.   In addition there were several deep lacerations of the neck which had completely severed the windpipe and gullet.   The presence of a substantial amount of swallowed and inhaled blood indicated that the throat had been cut following the head injury.   In his observations of 21 January 1986 in reply to those of the respondent Government the applicant also alleged that he was refused access to his wife's body following the post-mortem examiantions and that he was refused permission to take the body to his home to mourn her during the night of 5 to 6 April 1984, prior to her burial.   When charged with the applicant's wife's murder, D decided to plead guilty, thereby avoiding a full public trial under the Scottish accelerated procedure.   In consequence, many of the details of what happened to the applicant's wife were not revealed, as they would normally have been under cross-questioning in court.   The applicant is anxious to have sight of the pathologists' post-mortem report in order to ascertain what physically happened to his wife on the night of her death.   The Procurator Fiscal has refused to release a copy of this document to the applicant.   The applicant wrote to the chief pathologist at the hospital on 30 June 1984 stating that he was very concerned about the injuries which his wife had received just before her death and that he was not satisfied   by the reports in the newspapers.   He requested a "full report" on his wife's death.    The pathologist forwarded the letter to the Procurator Fiscal who informed the applicant on 6 July 1984 that it was not possible to provide the applicant with such a report since it was "a confidential document drawn up in connection with the criminal proceedings involving D".   The applicant then wrote to the pathologist on 14 July 1984 asking:   "If you cannot give me the full report on the causes of my wife's death could you please give me an outline or brief report.   Afterall I am (the deceased's) husband. And, I am entitled to know what happened to my wife ... "   The letter was passed to the Procurator Fiscal, who advised the applicant to instruct a solicitor.   The applicant instructed solicitors to approach the Procurator Fiscal on his behalf.   A meeting attended by a representative of that firm was arranged for 9 August 1984 when certain details of the circumstances of the applicant's wife's death were discussed.   The representative's note of that meeting is accepted by the parties as generally accurate and reads as follows:   "9 August 1984   Attendance with Procurator Fiscal discussing case   (The applicant's wife) was certified dead by Dr. M at 12.20 a.m. on 31 March 1984 on the roadway near the T Inn. When she actually died it is impossible to say.   She was murded in DC flats.   She was dragged from the flat and across the road towards the Quay.   D was stopped on T Road.   The actual facts are not clear as it was only the accused and the deceased in the flat.   Her throat was cut in the flat and she died immediately.   A knife was used. A bloodstained table knife was found - possibly more than one knife used.   Her windpipe was completely severed and also her gullet.   She also had a broken skull - she was hit over the head with a candle holder.   They understand that an argument started because she wanted more drink. All the injuries were to her head.   She was unmarked on the rest of her body.   The accused and [his] aunt and uncle were having a drink in the L Bar and met up with [the applicant's] wife very drunk.   They left at approximately 9.50 p.m. to go back to the flat at C Park.   They all went to the flat, no arguments or anything wrong.   They were going back for a party or a drink.   The aunt and uncle left the flat at approximately 10.40 p.m. to go to the T [Inn].   D and [the applicant's wife] were supposed to follow.   When the aunt and uncle left everything was fine - no arguments and the flat was in perfect order. The next anybody knows is when he was found dragging the body.   All her clothes were absolutely sodden with blood. The Procurator Fiscal was not prepared to give them back for various reasons. Hepatitis for one and public hygiene the other and after taking medical advice he said they should be destroyed.   However he is not certain if this did actually happen."   The applicant then approached the Lord Advocate at the Crown Office by letter of 14 November 1984 in the following terms:   "Dear Sir,   Brutal Murder of [the applicant's wife] 30 March 1984, Inverness   For the last six months I have asked the Procurator Fiscal to hand over the pathologist's report on my wife's death.   However, he refuses to do so.   As the accused pleaded guilty there was no trial in Inverness.   Therefore, we have no information about the circumstances of my wife's murder and the full nature of her injuries.   The defence ordered their own pathologist's report.   So, they know more about it than I do.   Is this true justice?   After all, I am [her] husband and I should have all the information. The [Procurator] Fiscal would have had to make all the information public if there had been a trial.   All this information belongs to the people not to the Procurator Fiscal.   I want the pathologist's report and I will not rest until I get it ...   I believe that more than one person was involved in [the applicant's] murder.   This is my opinion after I saw the injuries."   He was informed on 4 December 1984 by letter that the post-mortem report was a confidential document which could not be released.   The Lord Advocate's Office recalled that certain information had been given to the applicant's solicitor on his behalf in relation to the circumstances of his wife's death, and the letter continued:   "It is not the practice in any case to provide the victim's family with a copy of the post-mortem report and I am instructed to inform you that the Lord Advocate is not prepared to authorise the release of a copy of the report to you.   Efforts have already been made to provide you with information about the case in addition to such information as is contained in the press report. However, if there are any other outstanding matters on which you wish information, the Procurator Fiscal will be happy to discuss these (with your solicitors)."   On 19 November 1984 the applicant wrote to the Minister of State at the Scottish Office in Westminster in similar terms concerning his right of access to the report and adding:   "To think that this pathologist cut up my wife's body after the brutal murder.   This was completely unnecessary. Also, I want to know if any parts of my wife's body were removed.   I will have this pathologist by the balls if he does not hand over the report.   All I want is a piece of paper. It appears that one runs up against one wall after another when dealing with authority. Particularly the medical profession ... "   The applicant then approached his member of Parliament, who was also refused permission to see the post-mortem report on 18 January 1985, when he nevertheless informed the applicant that the Lord Advocate had confirmed that the Procurator Fiscal would make available to the applicant, through his solicitors, "any details of your wife's death which cause you concern".   The applicant's solicitors again contacted the Procurator Fiscal on the applicant's behalf on 4 March 1985 when a further meeting was held at which the Procurator Fiscal answered the applicant's questions as put.   The following record of the meeting is accepted as accurate by the parties:   "FILE: William Bell   DATE: 4 March 1985   Meeting with the Procurator Fiscal, Inverness   The Procurator Fiscal declined to supply any copies of the records relating to the murder of [the applicant's wife].   The Procurator Fiscal agreed to answer any questions from the very extensive files as follows:   1.       Did she die of brain damage due to blows to the head?   Answer: Death was from a neck wound, wind pipe was severed below the thyroid cartilage.   The gullet was cut severing the main artery, as a result she would have died very quickly.   2.       Were there signs of sclerosis of the liver?   Answer: No.   The liver was normal.   3.       Was she cut on the chest and arms?   Answer: There were abrasions on both the left and right elbows.   There were lineal scratches on the lower abdomen.   There were scratches on the Iliac Crest.   4.       Time of death?   Answer: Dr.   M pronounced her dead at 12.20 when he was called to the scene where the body was found at the P Centre on T Road.   The time of actual death was estimated to be about approximately midnight.   5.       Why did she have a hole in her hand - as if she grabbed an instrument?   Answer: There was a cut on the back of the right hand, the back of the second digit on the right hand was cut.   6.       The couple left C Park at ten minutes to 11 p.m. - after that things went wrong?   Answer: D's uncle and aunt left the flat at 10.40 p.m. The accused and the deceased were left in the flat on their own.   There is no information from that point except the accused's statement.   There is little information.   The accused admitted he was alone with the deceased.   He stated:   'she was wanting more drink and I did not.   She started slapping and nagging me.   I took this for so long and I hit her with the candlestick, she kept coming at me and I went berserk.   After that I don't know what happened'.   7.       Was D blazing drunk, did not know what happened?   Answer: D was drunk.   The second part of the question is contained in question 6.   8.       Why did [the applicant's wife] go to that house, she was in a girlfriend's flat, why did they not leave her in the flat?   Answer: D invited them to his girlfriend's flat after they had been drinking at the L Bar.   (D's girlfriend was not present and is not listed as a witness).   The reason why the deceased left her girlfriend's flat is unknown.   She did not leave the flat at C Park alive, she was dragged out after she was attacked.   9.       Who was involved - when did things happen?   Answer: Only D, who was alone with the deceased between 10.40 and approximately midnight when a witness saw them in the parking area outside the flat.   The witness stated that he saw a man who appeared to be attempting to lift a woman who was lying in the carpark.   The witness offered help but the man said he would manage without help. Thereafter the accused was seen dragging the deceased along T Road. Mr. G, a taxi driver, reported the matter to the police.   The only evidence of what happened when they were left in the flat, and what followed on until the witnesses reported the above scenes, is the accused's statements. There is evidence of blood in the flat, also on the staircase which would indicate that the applicant's wife was dead when she was dragged down the stairs from the flat.   The deceased's head was badly smashed in fact beyond identification when the body was examined but the cause of death was established as a result of the neck wound."   The applicant has been informed that the Procurator Fiscal is prepared to answer any further questions which he may wish to put concerning his wife's death and injuries.   COMPLAINTS   The applicant contends that the denial of an opportunity to see a copy of the pathologist's report made at the post-mortem investigation is an infringement of his rights under Article 10 of the Convention (Art. 10), and specifically the right to receive information.   If the case against D had gone to trial in the normal way, this information would have been likely to have been printed in the newspapers and have become common knowledge.   Although the applicant was able to ask questions of the Procurator Fiscal through his solicitors, this is not satisfactory because the applicant does not have sufficient knowledge of what may have been in the report and so cannot form questions without sight of it which would answer the queries in his mind.   Given that such a report would be common knowledge in certain circumstances, and would be made available even if not public in other circumstances, the applicant contends that there is a violation of Article 10 of the Convention (Art. 10) in the present case.   The applicant's representatives further indicate that from their contacts with the Procurator Fiscal, it appears that there would have been no real objections to providing a copy of the report had this been intended for some person other than the applicant, who is well-known in Inverness, and feels himself to be victimised because of his political views.   In his observations in reply to those of the respondent Government the applicant also complained that he was denied access to his wife's body following the post-mortem examinations and was not permitted to mourn her at his home prior to her burial.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 21 March 1985 and registered on 29 April 1985.   On 10 July 1985 the Commission decided, in accordance with Rule 42 para. 2(b) of its Rules of Procedure, that notice should be given to the respondent Government of the application and that they should be invited to submit their observations in writing on its admissibility and merits before 31 October 1985.   The respondent Government's observations were submitted on 30 October 1985, and the applicant's representative was requested to submit any observations in reply before 3 January 1986.   The representative requested and was granted an extension in this time-limit until 20 January 1986, and his observations in reply were submitted on 21 January 1986.   SUBMISSIONS OF THE PARTIES   Submissions of the respondent Government   Normal practice   Section 102 of the Criminal Procedure (Scotland) Act 1975 provides that when an accused person indicates that he wishes to plead guilty and to have his case disposed of at once, he is served with an indictment and a notice to appear before the appropriate court.   In the present case the appropriate court was, by virtue of the operation of paragraph 10 (2) of the Act of Ajournal (Procedures under Criminal Justice) (Scotland) Act 1980 No. 3 (1981) S.I. 1981 No. 1766 the High Court sitting in Edinburgh.   Under the law of Scotland, there is no general right for any person to obtain documents prepared by or for the Crown prosecution authorities for the purpose of the consideration or conduct of criminal proceedings.   Where a death occurs in suspicious circumstances a post-mortem report is obtained by the Procurator Fiscal, who is the local representative of the Lord Advocate who has overall responsibility for the prosecution of crime in Scotland.   The purpose of such a report is for use in connection with criminal proceedings exclusively.   An accused person is entitled to seek documents which are to be produced in evidence in criminal proceedings against him by virtue of Section 83 of the Criminal Procedure (Scotland) Act 1975.   Subject to that provision documents listed as productions are otherwise confidential unless or until revealed in evidence in open court.   They may be seen by the presiding judge, and, in his discretion, by members of the jury.   It is settled law (Mcglashan v. HM Advocate (1948) Arkley 500) that such documents prepared at the instance of the Crown and intended for use only at a criminal trial are the property of the Crown and remain so even after any proceedings for which they were prepared.   A party to civil proceedings in Scotland is entitled to ask the Court to grant a diligence to obtain delivery of documents relevant to the civil proceedings.   The Court of Session has consistently recognised the right of the Lord Advocate to object to the production of documents in the hands of Procurators Fiscal prepared or received for the purpose of the investigation and prosecution of crime, if the Lord Advocate considers that their production would not be in the public interest.   The Court retains the right to overrule such an objection in an exceptional case (Dowgray v. Gilmour (1907) SC 715 at 720).   This case law is supplemented by the current statutory provisions in relation to the production of documents in civil proceedings, contained in the Administration of Justice (Scotland) Act 1972, Section 1 of which grants power to the Court of Session and the Sheriff Court to make appropriate orders in respect of any documents which may be relevant for civil proceedings.   There is no reported case this century of any decision by a court in Scotland to order production of documents in the hands of the criminal prosecuting authorities when objection to such production has been made by the Lord Advocate, but none of the reported cases has dealt specifically with the production of a post-mortem report.   The Lord Advocate may, if he considers it to be in the public interest, authorise a disclosure of documents held by the Crown Prosecution Service, or not object to their disclosure when it is requested in civil proceedings.   It should be added that the next of kin may arrange himself for a further post-mortem examination to be carried out after a body has been released for burial, following a post-mortem conducted on the instructions of the Procurator Fiscal.   Admissibility and Merits   1.       Article 25 para. 1 (Art. 25-1)   The respondent Government contend first that the applicant cannot claim to be a victim within the meaning of Article 25 of the Convention (Art. 25), since he has been provided with the information contained in the post-mortem report about the cause of his wife's death, the nature and extent of her injuries and what physically happened to her on the night of her death.   In addition at no time has the Procurator Fiscal refused to answer questions on these matters put on the applicant's behalf through his solicitors, and he remains willing to deal with any further questions.   Article 8 (Art. 8)   In view of the Court's judgment in the Belgian linguistic case (Eur. Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A no. 6 at paras. 6 and 7) the object of this provision is essentially that of protecting the individual against arbitrary interference by the public authorities in one's family life.   No issue of private life, home or correspondence arises in the present case, and the respondent Government contend first that the refusal of the Procurator Fiscal and the Lord Advocate to permit the applicant to see the post-mortem report on his wife cannot be an interference with his family life as the post-mortem report as such does not form part of that family life. It is information prepared for the Procurator Fiscal, and any complaint concerning non-disclosure of such a document therefore falls to be considered exclusively under Article 10 (Art. 10) and not under Article 8 (Art. 8).   In addition, the applicant has in fact received the information which he seeks about the cause of his wife's death, the injuries sustained by her and what physically happened to her on the night of her death and the refusal of the relevant authorities to permit the applicant to see or receive a copy of the post-mortem report itself does not, in the submission of the Government, constitute an interference with his rights under Article 8 (Art. 8).   A post- mortem report contains detailed medical information about the full examination of the deceased's body. It may include information about the deceased of which the deceased's spouse was unaware, and which may have been deliberately concealed by the deceased from his or her spouse during the subsistence of the marriage.   The right to respect for family life under Article 8 (Art. 8) does not extend to confer an entitlement to receive a report containing such detailed medical information while the family unit remains in existence during the life of the spouse, and hence cannot confer such an entitlement to receive a post-mortem report containing such information in the hands of the Crown authorities after the death of the spouse.   The respondent Government therefore contend that the application is incompatible ratione materiae with the provisions of the Convention, or alternatively manifestly ill-founded.   Article 10 (Art. 10)   The respondent Government submit that there has been no interference with any right conferred by this provision, since the applicant has in fact received the information which he sought regarding the cause of his wife's death, the injuries sustained by her and what physically happened to her on the night of her death.   In his request for a sight or a copy of the post-mortem report, the applicant has never stated exactly why he is seeking to physically see or hold the report.   With regard to the particular questions which he has raised concerning his wife's injuries, their extent, the circumstances of her death, and the applicant's speculation that more than one person was involved in his wife's murder, detailed answers have been provided to him at meetings with his representatives on 9 August 1984 and 4 March 1985. The Procurator Fiscal has not declined to answer any question asked of him on the applicant's behalf, and the applicant's contention that, without access to the post-mortem report, he is unable to form questions that would answer queries in his mind is spurious and unsupportable.   The applicant, in the statement of the object of his application, states that he wishes to be allowed sight of the post- mortem report in order "to discover what is known of the circumstances of the murder and what happened to his wife on the night of her death".   This information has already been provided by the Procurator Fiscal, who is willing to deal with any further request for information as the applicant has already been informed.   Nor would the whole contents of the post-mortem report have been made public had the applicant's wife's murderer pleaded not guilty.   Only the information which was relevant to support the charge of murder and was necessary to prove that charge would have been required to be made public had there been a trial.   The post-mortem report is a technical medical document containing information as to the nature and extent of injuries and what physically happened to the deceased's body.   It would normally be referred to by witnesses, but not narrated in full.   It would not be made available to the press in the event of a trial.   In all these circumstances the respondent Government contend that there is no interference with the applicant's right to receive information protected by Article 10 of the Convention (Art. 10).   If the Commission nevertheless considers that there has been an interference with paragraph 1 of Article 10 of the Convention (Art. 10-1) the respondent Government contend that such an interference satisfies the four criteria set out by the Court in the Sunday Times judgment of 26 April 1979, Series A no. 30), namely that the interference:   a.       Was prescribed by law;   b.       Had an aim or aims that is or are legitimate under Article 10 para. 2 (Art. 10-2);   c.       Was necessary in a democratic society for that aim or those aims; and   d.       Was proportionate to that aim or those aims.   In view of the relevant statutory provisions, and their interpretation by a consistent line of case law, the respondent Government contend that the interference complained of is prescribed by law and that the law in question satisfies the requirements of accessibility and foreseeability imposed by Article 10 (Art. 10).   Any such interference would also pursue a justifiable aim, namely the prevention of disorder or crime, the protection of the reputation of rights of others, and the prevention of the disclosure of information received in confidence.   The prevention of disorder or crime clearly includes preventing citizens from taking the law into their own hands, and the withholding of confidential material concerning the prosecution in criminal proceedings is justifiable on that basis.   It is relevant in this respect that some of the applicant's comments in the correspondence submitted to the Commission are of an intemperate nature.   Furthermore, the respondent Government contend that the non-disclosure of documents received or prepared by the Crown prosecuting authorities in connection with the investigation of prosecution of crime also justifies withholding the post-mortem report "for the prevention of disorder or crime". Furthermore, if the Crown prosecuting authorities are to be able to obtain the services of expert forensic pathologists in cases of murder and other suspicious deaths, it is necessary that such experts should be able to rely on their reports being used only for their intended purposes for the investigation or prosecution of crime, and not being disclosed other than in connection with those proceedings and otherwise as provided for by law.   The post-mortem reports are obtained not only for use in criminal proceedings, but also for the investigation of crime, and they must therefore contain all relevant information for this purpose as well as for the purpose of prosecution.   Pathologists should not be inhibited from stating all such information and their opinions thereon fully and frankly; there might be concern if their reports were to be disclosed other than on this specific basis.   In addition, the protection of the reputation or rights of others includes the protection of the reputation of the deceased as to his life and past, and of the deceased's associates and the reputation and rights of the pathologist who prepared the report, for example against violence or civil suit or harassment.   The Government also submit that such interference was necessary within the meaning of Article 10 para. 2 (Art. 10-2), in that the national authorities are entitled, in the exercise of their margin of discretion, to take the view that there is a pressing social need to withhold from disclosure documents such as the post-mortem report in the hands of the Crown prosecuting authorities for the purpose of the consideration and commencement of criminal proceedings.   Moreover the aim of this policy is applied in a proportionate manner since the rule is not a rigid one, and exceptions can be made, for example, to permit civil actions or an insurance claim to be brought.   No such special claim arises in this case, and the applicant's allegation that the refusal to provide him with the post-mortem report is due to his political activities is categorically denied.   Submissions of the applicant   Domestic law and practice   The applicant submits that, as is illustrated by his application and the observations of the respondent Government, where the Lord Advocate opposes the disclosure of documents prepared for the prosecution in the hands of the prosecution authorities no effective remedy exists in the law of Scotland to redress his refusal.   Admissibility and merits   Article 25 para. 1 (Art. 25-1)   The applicant may, in view of the facts, and the absence of a remedy against the matters about which he complains, claim to be a victim of a breach of Articles 8, 10 and 13 of the Convention (Art. 8, art. 10, art. 13).   Articles 8 and 10 (Art. 8, art. 10)   The scope of the protection afforded by Article 8 of the Convention (Art. 8) is broader than that stated by the respondent Government, as the safeguards go far beyond the measurable features of life, to include the range of intimacies and understandings peculiar to human relationships.   Matters of emotional and sentimental value cannot therefore be excluded.   The notion of family life includes in certain circumstances extra-marital relationships, and both mothers and fathers have certain rights to the unborn, as also spouses have rights in respect of the deceased.   It follows that, as part of the incidence of natural love and affection, the applicant should be entitled to see the post-mortem report even if it contained nothing of deemed benefit to him.   Alternatively, if the report contains matters deemed benefit, the applicant should also be entitled to see it.   Whatever the position under Article 8 (Art. 8) with regard to obtaining information concerning persons who are alive, the present position is entirely different, not least because further medical reports on living persons may always be obtained.   In the present case the applicant is the beneficiary of the deceased's estate.   It is noted that the Procurator Fiscal remains willing to deal with any further questions concerning the post-mortem report or the circumstances of the death of the applicant's wife and that the applicant is free to ask whatever further questions he wishes.   This was confirmed by the Crown Office letter of 3 October 1985.   The applicant cannot know precisely what is meant by the word "deal".   If the Procurator Fiscal will answer any questions put on behalf of the applicant then there would seem to be no justification in refusing him sight of the report.   The alternative would be for the applicant to indulge in the proceedings not unlike a guessing game.   If however the report actually contains   matters about which the respondents are not prepared to answer questions, then it is essential to know whether such information includes material as referred to by the Government as justifying the withholding of information, such as information of which the deceased's spouse was unaware, and which his spouse during the subsistence of their marriage did not wish him to know.   As matters stand, the respondent Government merely indicate that, if there were such material, it might justify the withholding of information. Such an approach does not provide basis for a justification of withholding information in a general way, unless such material were present.   Even if the report does contain material that the respondent Government would prefer to remain confidential to themselves, there may be other details which the applicant has a perfect right to know. Sensitive parts could be deleted from an edited copy of the report, if there is any genuine ground of confidentiality at issue.   The applicant, as is clear from the correspondence and other material which he has submitted, has certain particular concerns with regard to circumstances of his wife's death.   There is public concern that certain material aspects of the tragedy have not been revealed in full.   The applicant believes that more than one person may have been involved in the murder.   It appears that his wife may have had money removed from her, prior to her death.   The deceased appears to have been unnecessarily cut up by the pathologist and concern is expressed that parts of her body may have been removed. The applicant was not allowed to see his wife's body until three days after her death, and then in rushed circumstances.   Serious doubts therefore exist as to many of the circumstances of the applicant's wife's death.   The applicant was refused access to his wife's body after the post-mortem, and was not permitted to have her body taken to his house for one night prior to her burial.   The reasoning of the respondent Government contains an essential fallacy, in that they equate a "query", or more accurately a basis of "concern" with having a factual basis sufficiently sound to enable questions to be framed which include and exclude all deductable facts. The post-mortem report may refer to matters incapable of anticipation by the applicant.   The respondent Government's observations fail to distinguish in this respect between deduction by the applicant and guesswork.   Where relevant basic facts are provided it is usually possible to make reasonable deductions by asking questions themselves deduced from those facts.   Alternatively, as may be the present position because the applicant has an incomplete basis for his questions, he is in effect left to guess.   The fact that the post-mortem report is "a technical medical document containing information as to the nature and extent of injuries of what physically happened to the deceased body" as stated by the respondent Government does not make it inappropriate to the applicant's concern.   In addition it is completely unfounded to allege that there is any danger that the applicant might take matters into his own hands. The reference to the applicant's "intemperate language" in his correspondence is exaggerated.   To suggest that the prosecution authorities were concerned or alarmed is spurious.   Furthermore, it is quite spurious to assert that pathologists expect their investigations and conclusions in a post-mortem report to be confidential since such reports become a production in murder cases, and it is usual that they be spoken to in evidence by two pathologists.   Often pathologists are questioned in detail by the Crown and are subject to extensive cross-examination by the defence, and it is notable that, with the exception of evidence of complainers in rape cases, members of the public and the press are freely admitted to prosecutions in Scotland.   It is not known whether in this case, the post-mortem report contained some details which actually might have affected the reputation of the deceased or others.   Nevertheless, it is difficult to envisage how any such matter could be accorded such a high degree of confidentiality to be kept from the spouse.   It is even harder to envisage such matters that should be kept secret indefinitely from a surviving spouse.   In these circumstances it is submitted that the interference with the applicant's rights was not necessary.   There is no valid reason why the applicant could not have seen the report himself and every reason why he should.   It is established from the judgment in the Handyside case (Eur. Court H.R., Handyside judgment of 7 December 1976, Series A no. 24), that the domestic margin of appreciation goes hand in hand with the European supervision, which concerns both the aim of the measure challenged and its necessity.   As such it covers not only the basic legislation but also the specific decision applying it.   The arguments of the respondent Government do not provide the basis upon which such an assessment of the specific decision in this case can be evaluated.   It is also to be noted from the judgment in the Klass case (Eur. Court H.R., Klass judgment of 6 September 1978 Series A Volume 28 para. 21) that an exception to the rights guaranteed by the Convention is to be narrowly interpreted.   While therefore the national authorities are allowed a discretion in assessing the extent to which the exigencies of a situation require the rights of a subject under the Convention to be restricted, it does not follow that the Commission's examination is limited to ascertaining whether the State has exercised its discretion: "reasonably, carefully and in good faith.   Even a contracting State so acting remains subject to the Court's control as regards the compatibility of its conduct with the engagement it has undertaken under the Convention." (Sunday Times Case, supra, para. 35).   The applicant contends that the criteria applied by the Commission in X. and Church of Scientology v. Sweden (Application No. 7805/77, D.R. 16, p. 68) must be applied to examine the restrictions based upon the applicant's access to the post-mortem report.   The Commission there held:   "The 'necessity' test cannot be applied in absolute terms, but requires the assessment of various factors: such factors include the nature of the right involved, the degree of interference, ie whether it was proportionate for the legitimate aim pursued, the nature of the public interest which requires protection in the circumstances of the case."   The application of these principles in the present case reveals that the rights protected under Article 8 (Art. 8) are both intimate and precious while the information sought under Article 10 (Art. 10) is of high personal value to the applicant at least.   The degree of interference on the part of the prosecuting authorities is excessive and perhaps pointless, having regard to their willingness to answer questions. Whilst it is conceded that there are circumstances where a high public interest may exist in relation to certain documents obtained by a prosecuting authority, the present request is not amongst them, or has not been shown to be by the respondent Government.   Part of the notion of a democratic society referred to in Articles 8 and 10 of the Convention (Art. 8, art. 10) is the concept of the rule of law. In view of the respondent Government's arguments, no effective legal remedy exists against the refusal of the Lord Advocate to release prosecution documents.   It is submitted that such a remedy is required if the full sense of the rule of law is to be achieved, particularly in view of the Court's judgment in the Klass case (supra, para. 25) where the Court held:   "The rule of law implies inter alia that an interference by the executive authorities with an individual's rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure."   If the prosecuting authorities were justified in refusing the applicant either access to his deceased wife's corpse for three days, or a copy of the post-mortem report, which is denied, it is submitted that they had a duty in the terms of Article 10 (Art. 10) to advise the applicant that he could have a private post-mortem arranged.   This obligation arises by analogy with the Klass case where the authorities were found to have a duty to notify the persons under surveillance of that fact as soon as that became practicable.   Article 13 (Art. 13)   The respondent Government are also in breach of this provision, since they concede that no effective remedy exists in the law of Scotland to redress the Lord Advocate's refusal to authorise a disclosure of documents prepared for the prosecution which are in the hands of the prosecuting authorities.   The applicant relies in this respect on the reports of the Commission in the case of Silver and others (Comm. Report of 11.10.80, paras. 443-452) and in the Sporrong and Lönnroth case (Comm. Report of 8.10.80, paras. 154-165).   Article 18 (Art. 18)   The respondent Government appear to be applying a policy decision relating to all prosecution documents and materials to the present application for the sight of the post-mortem report.   They seek to apply restrictions and to preserve their policy, although they have no substantial objection to disclosure in the applicant's individual case.   In reality, they have no objection to this applicant becoming appraised of the whole circumstances of his deceased wife's death as is demonstrated by their willingness and continued willingness to answer his questions.   Nevertheless they arbitrarily refuse him access to the post-mortem report.   The applicant therefore contends that the application is admissible and discloses breaches of Articles 8, 10, 13 and 18 of the Convention (Art. 8, art. 10, art. 13, art. 18).   THE LAW   1.       The applicant complains that the refusal of the Scottish authorities to provide him with a copy of the pathologist's post-mortem report of his murdered wife is a breach of Article 10 of the Convention (Art. 10), which provides:   "1.   Everyone has the right to freedom of expression.   This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.   This Article (Art. 10) shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.   2.   The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."   The post-mortem report is a technical medical document which is the property of the Crown and is not normally released to the public.   The applicant nevertheless wishes to receive a copy of the report and contends that Article 10 (Art. 10) confers upon him a right to require the production to him of such a document by the Government.   In this regard the Commission recalls the previous occasions upon which it has considered what sorts of information are covered by the freedom to receive information referred to in Article 10 (Art. 10). In its decision on the admissibility of Dec. No. 8383/78, X. v. the Federal Republic of Germany, (D.R. 17 p. 227) the Commission did not exclude the possibility that:   " ... the right to receive information may under certain circumstances include a right of access by the interested person to documents which, although not generally accessible, are of particular importance to his own position ... "   The Commission concluded however that there was no question of a denial of such specific information in that case.   In its decision on the admissibility of Dec. No. 8878/80, X. v. Ireland (7.12.81 unpublished), the Commission recognised that:   "Although ...   Article 10 (Art. 10) is primarily intended to guarantee access to general sources of information, it cannot be excluded that in certain circumstances, it includes a right of access to documents which are not generally accessible. ...   The Commission is not of the opinion, however, that Article 10 (Art. 10) imposes an obligation on state authorities to publish such information, as opposed to facilitating access to them."   However, the Commission is not required to decide the extent of the right conferred upon the applicant by Article 10 para. 1 (Art. 10-1) as regards the post-mortem report, since it is clear that he has in fact substantially received the information which he claims is denied to him.   Certain details of the circumstances of his wife's death were provided to his solicitors by the Procurator Fiscal at a meeting on 9 August 1984 following a request by them for a copy of the full report. In response to a further request to the Lord Advocate at the Crown Office on behalf of the applicant for a copy of the report, the Lord Advocate confirmed that it was not the practice in any case to provide the victim's family with a copy of the post-mortem report.   However, in addition to the information already made available to the applicant, the Lord Advocate confirmed that the Procurator Fiscal would be happy to discuss any other outstanding matters on which information was sought with the applicant's solicitors.   Further information was provided at another meeting between the applicant's representative and the Procurator