CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 octobre 1988

.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 }        AS TO THE ADMISSIBILITY OF     Application No. 12327/86 by Ian NIMMO against the United Kingdom             The European Commission of Human Rights sitting in private on 11 October 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   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;           Having regard to the application introduced on 17 April 1986 by Ian NIMMO against the United Kingdom and registered on 18 August 1986 under file No. 12327/86;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows: .PA:12327/86 THE FACTS           The applicant is a British citizen, born in 1957 and resident in Welwyn.   The applicant is represented by Ms Marie Staunton of the National Council of Civil Liberties (N.C.C.L.).   The facts as submitted by the applicant may be summarised as follows.           The applicant is a financial analyst.   On 6 September 1985 the applicant attended an interview at M.E.L., a member of the Philips Electronic and associated industries group, in connection with a vacancy for a financial analyst.   The post involved providing an accounting service to the electronic warfare division, which dealt, inter alia, with Government defence contracts.   He was informed by the Senior Personnel officer that he would have to go through a vetting procedure.           On 13 September the applicant attended a second interview and he was verbally offered the post subject to security clearance.   The applicant was not himself asked to provide any references.   A few days later, the applicant received a letter from M.E.L., dated 13 September 1985, offering him the position of financial analyst "subject to our obtaining satisfactory references".   By letter of 19 September the applicant accepted the offer and the conditions and terms of employment referred to in the letter.           The applicant was subsequently informed by letter of 22 October from M.E.L. that "references have not proved satisfactory.   We shall not therefore be proceeding with an unconditional offer of employment."           The applicant knew of no reason which could have been responsible for his failure to obtain security clearance.   At no time did any person in authority inform the applicant that information relevant to his security status had been obtained or retained or that it had been used in connection with his job application.   Further, at no time did any such person give him an opportunity to know the contents of that information so that its accuracy could be checked or so that the applicant could comment upon it.   The applicant believes that security clearance procedures are operated in connection with applications for all jobs in private sector companies who are engaged in defence contracts and that such procedures are carried out by and/or at the insistence of the Security Services of the United Kingdom.           On 6 January 1986, the N.C.C.L wrote to the Cabinet Office (Security Division) to inquire whether the "Three Advisers" procedure permitted an appeal by an individual such as the applicant, who had applied for a post in a commercial company engaged in defence contracts and had been refused on security grounds.   By this procedure, an existing employee, who is found to be unsuitable on security grounds, may appeal either in writing or in person, to the Minister in charge of the department to which the firm was contracted and then to the "Three Advisers".   The Cabinet Office replied by letter of 27 February 1986 that the appeal procedure of the "Three Advisers" only applied to existing employees of companies engaged in classified Government work and not to applicants for employment. .PA:12327/86 COMPLAINTS   1.       The applicant complains that he has suffered the ban of a career as a financial analyst in the electronics industry.   He has not only been unable to take the post at M.E.L. but since many large electronics companies are involved in Government contracts, his inability to satisfy clearance procedures considerably narrows the field in which he can apply for jobs.           He contends that the obtaining, retention and application of personal information about himself so as to adversely affect this job application, without any opportunity to know of that exercise or to comment on the accuracy of the information and the continuing retention of such information in such circumstances, constitutes a breach of his right to respect for his private life.   The applicant relies on Leander v.   Sweden (Application No. 9248/81, Comm.   Rep. of 17.5.85), X v. the United Kingdom (Application No. 8065/77, Dec. 3.5.78, D.R. 14 p. 246) and X v.   Austria (Application No. 8170/78, Dec. 4.5.79, D.R. 16 p. 145).           The applicant argues that the obtaining, retention and application of personal information is not "in accordance with law" and that the relevant law, if any, is not adequately accessible or formulated.   He also states that the job for which he applied could not be said to have implications for national security and that there were no adequate safeguards to ensure the relevant procedures operated fairly and effectively.           The applicant invokes Article 8 of the Convention.   2.       The applicant further invokes Article 13 of the Convention in that he has no effective remedy before a national authority in respect of the matters of which complaint is made.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 April 1986 and registered on 18 August 1986.   On 14 December 1987, the Commission decided, pursuant to Rule 42(2)(b) of the Commission's Rules of Procedure, to bring the application to the notice of the respondent Government and to invite them to submit observations on the admissibility and merits.           On 2 March 1988, the respondent Government submitted its observations and on 5 May 1988 the applicant submitted his observations in reply.     SUBMISSIONS OF THE PARTIES           A. The respondent Government           The respondent Government contend that it is unclear to what extent the applicant's complaints relate to the acts of M.E.L.   The applicant complains about the obtaining, retention and application of personal information and states inter alia that the object of his claim is to obtain confirmation that no data concerning his activities .PA:12327/86 are retained by M.E.L., or if there are, to know the contents of such data so that he can check their accuracy.   To the extent therefore that the applicant complains of the acts of M.E.L., the Government submit that the application is incompatible ratione personae with the Convention.           The Government reserves the right to submit observations on the merits if the application is declared admissible.           B. The applicant           The applicant in reply emphasises that M.E.L. is a government contractor in the area of defence and that it is his belief that security clearance and associated enquires carried out by M.E.L. are done by, or at the insistence of the Security Services and/or the Ministry of Defence.   The violations alleged are therefore not solely the responsibility of M.E.L. but also that of the Security Services and/or the Ministry of Defence to the extent that they were involved or are responsible for the matters complained of.           By reason of the circumstances of the case, the applicant has no knowledge of the precise role played by the security services or the Ministry of Defence, but enquiries and a security clearance on the applicant were carried out and it must be presumed that they were carried out by the security services.   It is also reasonable to infer that the procedures for such a clearance were agreed at a senior level within the Ministry of Defence, the security services and M.E.L., and that M.E.L. implemented those procedures in liaison with the Security Services and/or the Ministry of Defence.   It is to be reasonably presumed that the Security Services used personal information about the applicant which it had obtained, that it then made an assessment about the applicant, and that it then gave advice to M.E.L. about the employment or non-employment of the applicant.           A further matter of concern to the applicant is whether files containing personal information are kept on him by the security services.   The Government's observations do not indicate whether or not this is the case, but their retention for future use might well impair his career prospects and his promotion opportunities. Accordingly, the applicant would state that the object of his application is to obtain confirmation that no data concerning his private activities are retained by M.E.L. or the security services or, if they are, to know the contents of such data so that he can check their accuracy.           To the extent that the applicant's complaint relates to the actions of the Ministry of Defence or the Security Services, such actions engage the responsibility of the United Kingdom.   To the extent that the complaint relates to the actions of M.E.L. it is submitted that such actions also engage the responsibility of the United Kingdom by reason of the matters set out above.     THE LAW           The applicant complains of the obtaining, retention and application of personal information about himself in relation to his application for a post at M.E.L.   He invokes Articles 8 and 13 (Art. 8, 13) of the Convention in relation to his complaints.   1.       Insofar as the applicant appears to complain of the obtaining, retention and application of personal information about himself by M.E.L., the Commission recalls that under Article 25 para. 1 (Art. 25-1) of the Convention, it may only receive an application from a person, non-governmental organisation or group of individuals where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set out in the Convention and where that Party has recognised this competence of the Commission.   The Commission may not, therefore, receive applications directed against private individuals or private enterprises, such as M.E.L.   In this respect the Commission refers to its established case-law (see e.g.   No. 172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215 and No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 27).           It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant complains however that the security clearance procedure applied to him which involved the obtaining, retention and application of personal information about him, was carried out by or at the insistence of the security services of the United Kingdom.   He submits that this constitutes a breach of his right to respect for his private life contrary to Article 8 (Art. 8) of the Convention and that the resulting interference is not "in accordance with law", that the relevant law, if any, is not adequately accessible and that there are no adequate safeguards against abuse.           Article 8 (Art. 8) of the Convention provides:           "1.   Everyone has the right to respect for his private         and family life, his home and his correspondence.           2.   There shall be no interference by a public authority         with the exercise of this right except such as is in         accordance with the law and is necessary in a democratic         society in the interests of national security, public safety         or the economic well-being of the country, for the prevention         of disorder or crime, for the protection of health or morals,         or for the protection of the rights and freedoms of others."           The Commission recalls that in the Leander case, the European Court of Human Rights held that the storing of information concerning a person's private life in a secret police register amounts to an interference with the right to respect for private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention (see Eur.   Court H.R., Leander judgment of 26 March 1957, Series A No. 116, p. 22, para. 48).           The Commission has considered whether the applicant has sufficiently proved the compilation and retention of a dossier concerning him.   The Commission recalls that in the Klass case, the Court stated, concerning the requirement of proof of secret measures, that:           "an individual may, under certain conditions, claim to be         the victim of a violation occasioned by the mere existence         of secret measures or of legislation permitting secret         measures, without having to allege that such measures were .PA:12327/86         in fact applied to him.   The relevant conditions are to be         determined in each case according to the Convention right         or rights alleged to have been infringed, the secret         character of the measures objected to, and the connection         between the applicant and those measures" (Eur.   Court H.R.,         judgment of 6 September 1978, Series A No. 28, pp. 18-19,         para. 34).           The Commission does not consider that this passage can be interpreted so broadly as to encompass every person in the United Kingdom who considers that the security service may have compiled information about him.   The Commission refers in this respect to its previous case-law in which the situation in the Klass case (loc. cit.) where the legislation potentially affected all users of postal and telecommunications services was distinguished from those cases in which the category of persons likely to be affected by the measures in question was not similarly open-ended.   On the other hand, the Commission considered that it should be possible in certain cases to raise such a complaint without the necessity of proving the existence of a file of personal information.   To fall into the latter category the Commission was of the opinion that applicants must be able to show that there is, at least, a reasonable likelihood that the Security Services have compiled and continues to retain personal information about them (see e.g.   Application No. 12015/86, Dec. 6.7.88).           In the present case, the Commission recalls that the applicant applied for a post in a company which dealt with Government defence contracts and in connection with which he was told he would be subjected to a vetting procedure.   On 13 September 1985, the applicant was offered the post by M.E.L. subject to the results of security clearance but was subsequently informed by letter of 22 October 1985 that he would not in fact be offered the post.   The Commission finds in these circumstances that there is a reasonable likelihood that the refusal of the post was connected with compilation and retention by the Security Services of personal information concerning the applicant.           The Commission considers that, in light of the above matters, the applicant's complaints under Article 8 (Art. 8) of the Convention raise complex issues of law and fact, the determination of which should depend on an examination of the merits of the complaints.   3.       The applicant also complains that he has no effective remedy before a national authority in respect of the matters of which complaint is made.           Article 13 (Art. 13) of the Convention provides:           "Everyone whose rights and freedoms as set forth in         this Convention are violated shall have an effective         remedy before a national authority notwithstanding that         the violation has been committed by persons acting in an         official capacity."           The Commission considers that this part of the application also raises complex questions of law and fact, the determination of which should depend on an examination of the merits of the application as a whole.           For these reasons, the Commission           DECLARES INADMISSIBLE&S the applicant's complaints         directed against M.E.L.;           DECLARES ADMISSIBLE&S, without prejudging the merits,         the remainder of the application.       Secretary to the Commission              President of the Commission               (H.C. KRÜGER)                            (C.A. NØRGAARD)