CEDH · CASELAW;REPORTS;ENG — 9 mai 1989

.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 }    Application No. 12327/86       Ian NIMMO     against     the UNITED KINGDOM       REPORT OF THE COMMISSION   (adopted on 9 May 1989)       TABLE OF CONTENTS                                                                       page   I.       INTRODUCTION (paras. 1-14) ............................    1-2           A.   The application (paras. 2-4) ......................     1           B.   The proceedings (paras. 5-9) ......................     1           C.   The present Report (paras. 10-14) .................     2     II.      ESTABLISHMENT OF THE FACTS (paras. 15-22) .............    3-5           A.   The particular circumstances of the case             (paras. 15-19) ....................................     3           B.   The relevant domestic law and practice             (paras. 20-22) ....................................     4     III.     OPINION OF THE COMMISSION (paras. 23-51) ..............    6-10           A.   Points at issue (para. 23) ........................     6           B.   Article 8 of the Convention (paras. 24-42) ........     6           C.   Article 13 of the Convention (paras. 43-49) .......     9           D.   Recapitulation (paras. 50-51) .....................     10               APPENDIX I       History of the proceedings                 before the Commission .........................     11   APPENDIX II      Decision on the admissibility                 of the application ............................     12   I.       INTRODUCTION     1.       The following is an outline of the case as submitted to the European Commission of Human Rights and of the procedure before the Commission.   A.       The application   2.       The applicant is Ian Nimmo, a British citizen, born in 1957 and resident in Welwyn.   He is represented before the Commission by Ms.   Madeleine Colvin of the National Council of Civil Liberties (N.C.C.L.).   3.       The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mr.   Michael Wood of the Foreign and Commonwealth Office, London.   4.       The case relates to the applicant's complaint of being refused a post following a security check.   It raises issues under Articles 8 and 13 of the Convention.     B.       The proceedings   5.       The application was introduced on 17 April 1986 and registered on 18 August 1986.   6.       On 14 December 1987, the Commission decided that notice of the application should be given to the respondent Government, pursuant to Rule 42 para. 2 (b) of the Commission's Rules of Procedure, and that they should be invited to submit before 4 March 1988 their written observations on the admissibility and merits of the application.   7.       The Government's observations were received on 2 March 1988 and the applicant's observations in reply were submitted on 5 May 1988.   8.       On 11 October 1988, the Commission decided to declare the application admissible.   The parties were then invited to submit any additional observations on the merits of the application which they wished to make.   Neither party submitted further observations on the merits.   9.       After declaring the case admissible the Commission, acting in accordance with Article 28 para. b of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.       The present Report   10.      The present Report has been drawn up by the Commission in pursuance of Article 31 para. 1 of the Convention and after deliberations and votes, the following members being present:                   MM.   J.A. FROWEIN, Acting President                      F. ERMACORA                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      H.G. SCHERMERS                      H. DANELIUS                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES   11.      The text of this Report was adopted by the Commission on 9 May 1989 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   12.      The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is           1)    to establish the facts, and           2)    to state an opinion as to whether the facts found              disclose a breach by the State concerned of its              obligations under the Convention.   13.      A schedule setting out the history of the proceedings before the Commission is attached hereto as Appendix I and the Commission's decision on the admissibility of the application forms Appendix II.   14.      The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission. II.      ESTABLISHMENT OF THE FACTS     A.       The particular circumstances of the case   15.      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.   16.      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.   17.      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."   18.      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.   19.      On 6 January 1986, the N.C.C.L. wrote to the Cabinet Office (Security Division) on the applicant's behalf 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. B.       The relevant domestic law and practice   20.      The Security Service was established and exists for the exclusive purpose of the defence of the Realm.   The activities of the Security Service are governed by the published Directive of the Home Secretary to the Director-General of the Service, a Crown Servant, dated 24 September 1952 ("the Directive") as follows:   "1.   In your appointment as Director-General of the Security Service you will be responsible to the Home Secretary personally.   The Security Service is not, however, a part of the Home Office.   On appropriate occasion you will have right of direct access to the Prime Minister.   2.   The Security Service is part of the Defence Forces of the country.    Its task is the Defence of the Realm as a whole, from external and internal dangers arising from attempts at espionage and sabotage, or from actions of persons and organisations whether directed from within or without the country, which may be judged to be subversive to the State.   3.   You will take special care to see that the work of the Security Service is strictly limited to what is necessary for the purposes of this task.   4.   It is essential that the Security Service should be kept absolutely free from any political bias or influence and nothing should be done that might lend colour to any suggestion that it is concerned with the interests of any particular section of the community, or with any other matter than the Defence of the Realm as a whole.   5.   No enquiry is to be carried out on behalf of any Government Department unless you are satisfied that an important public interest bearing on the Defence of the Realm, as defined in paragraph 2, is at stake.   6.   You and your staff will maintain the well-established convention whereby Ministers do not concern themselves with the detailed information which may be obtained by the Security Service in particular cases, but are furnished with such information only as may be necessary for the determination of any issue on which guidance is sought."   21.      Members of the Security Service are public officials but unlike, for example, police officers, immigration officers or officers of HM Customs and Excise, they have conferred on them no special powers whether under any law or by virtue of the Directive.   Members of the Service are Crown Servants, subject to the disciplinary control of the Crown but are otherwise in no position different from private citizens.   Their activities are constrained by the criminal law and the law of torts in the same way as the activities of citizens generally are so constrained.   Thus, if they carry out or engage in matters which it is unlawful for citizens generally to carry out or engage in, it is likewise unlawful for them to do so and they would thereby be liable to be proceeded against for any offence which was thereby committed, or liable in any civil proceedings in respect of any tort which had resulted. 22.      From June to September 1963 Lord Denning, one of the then most senior Judges of the Supreme Court, at the request of the Prime Minister, undertook an examination of the operation of the Security Service in the light of the resignation of the then Secretary of State for War.   At paragraph 239 of his Report dated 16 September 1963 (Cmnd. 2152), Lord Denning, after hearing a considerable body of evidence, found general approval that the Directive embodied the correct principles, which principles (inter alia) he summarised as follows:   "(1) The Head of the Security Service is responsible directly to the Home Secretary for the efficient and proper working of the Service and not in the ordinary way to the Prime Minister.   (2) The Security Service is, however, not a department of the Home Office.   It operates independently under its own Director-General, but he can and does seek direction and guidance from the Home Secretary, subject always to the proviso that its activities must be absolutely free from any political bias or influence.   (3)   The function of the Security Service is to defend the Realm as a whole from dangers which threaten it as a whole, such as espionage on behalf of a foreign Power, or internal organisations subversive of the State.   For this purpose, it must collect information about individuals, and give it to those concerned.   But it must not, even at the behest of a Minister or Government Department, take part in investigating the private lives of the individuals except in a matter bearing on the Defence of the Realm as a whole.   (4)   The Head of the Security Service may approach the Prime Minister himself on matters of supreme importance and delicacy, but this is not to say that the Prime Minister has any direct responsibility for the Security Service.   He has certainly none in day-to-day matters.   It would be a mistake for the Prime Minister to take such responsibility because he cannot in practice exercise adequate supervision, and he has not the secretariat for the purposes."   III.     OPINION OF THE COMMISSION   A.       Points at issue   23.      The principal issues to be determined are:   -        Whether there has been a violation of Article 8 (Art. 8) of the Convention in the obtaining, retention and application of personal information concerning the applicant;   -        whether there has been a violation of Article 13 (Art. 13) of the Convention.     B.       Article 8 (Art. 8) of the Convention   24.      The applicant complains that he has been subject to the obtaining, retention and application of personal information about himself.   He submits that the security check and associated enquiries to which he was subjected on applying for the post at M.E.L. were carried out by or at the insistence of the Security Service.   He contends that this constitutes an unjustified interference with his right to respect for his private life as guaranteed by Article 8 of the Convention.   25.      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."   26.      The Government, in line with their policy of not disclosing information about the operations of the Security Service, have neither confirmed nor denied the applicant's allegations.   27.      The Commission does not consider that a security check per se constitutes an interference with the right to respect for private life guaranteed by Article 8 (Art. 8) of the Convention.   An interference with this right occurs when security checks are based on information about a person's private life (see e.g.   Eur.   Court H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 22 para. 45).   28.      A question arises as to whether the evidence before the Commission as to the compilation and retention of information concerning the applicant's private life leads to the conclusion that there has been interference with his right to respect for private life.   29.      The Commission notes that the applicant has no concrete proof to support his allegation that the Security Service compiled and continue to retain a file of personal information about him.   The Commission recalls however that "an individual may, under certain conditions, claim to be a victim of a violation occasioned by the mere existence of secret measures ... without having to allege that such measures were in fact applied to him" (Eur.   Court H.R., Klass judgment of 6 September 1978, Series A no. 28, p. 18 para. 34).   30.      The Court in the Klass case added that the relevant conditions were "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" (ibid.).   31.      Similarly, in the Malone case, the Court agreed with the Commission that the existence of laws and practices permitting and establishing a system for effecting secret surveillance amounted in itself to an interference with the applicant's rights under Article 8 (Art. 8) of the Convention, apart from any measures actually taken against him (Eur.   Court H.R., Malone judgment of 2 August 1984, Series A no. 82, p. 31 para. 64).   32.      The Commission does not consider that this case-law can be interpreted so broadly as to encompass every person in the United Kingdom who fears that the Security Service may have compiled information about him.   The Commission, however, considers that an applicant cannot be reasonably expected to prove that information concerning his private life has been compiled and retained.   It is sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there is a reasonable likelihood that the Security Service has compiled and retained information concerning his private life (see e.g.   Application No. 12015/86, Dec. 6.7.88, to be published in D.R.).   33.      In the present case, the Commission recalls that the applicant was applying for a post in a company involved in the sensitive area of Government defence contracts.   He was informed that he was offered the job subject to a security check and was subsequently informed that the offer was withdrawn as a result of these enquiries.   In these circumstances, the Commission finds that the applicant's contention that the security check was carried out by the Security Service and involved reference to information concerning his private affairs is a reasonable inference from the facts.   34.      The Government have not contested this interpretation of the situation.   35.      Against the above background, the Commission finds that the existence of practices permitting secret surveillance has been established and that the applicant has established a reasonable likelihood that the Security Service has compiled and retained a file concerning his private life, which was referred to in the course of the security check.   It follows that there has been an interference with the applicant's right to respect for his private life guaranteed under Article 8 para. 1 (Art. 8-1) of the Convention.   36.      The Commission must next determine whether this interference is justified under Article 8 para. 2 (Art. 8-2).   It has first considered whether the interference is "in accordance with the law".   37.      The Commission recalls that the phrase "in accordance with the law" includes requirements over and above compliance with the domestic law.   The "law" in question must be adequately accessible in the sense that the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. In addition, "a norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct.   He must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (See Eur.   Court H.R., Sunday Times judgment of 26 April 1979, Series A no. 30, p. 31 para. 49).   38.      The Court in the Malone case has further elucidated the concept of foreseeability and highlighted its importance as a safeguard against the arbitrary application of measures of secret surveillance.   The Court stated as follows (loc. cit., p. 32 para. 67):   "The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention (see, mutatis mutandis, the [above-mentioned] Silver and Others judgment, p. 34, para. 90, and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para. 34).   The phrase thus implies - and this follows from the object and purpose of Article 8 (Art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (Art. 8-1) (see the report of the Commission, paragraph 121).   Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident (see the above-mentioned Klass and Others judgment, Series A no. 28, pp. 21 and 23, paras. 42 and 49).   Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purpose of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals.   In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly.   Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence."   39.      The Commission notes that the activities of the Security Service are governed by a Directive of the Home Secretary to the Director-General of the Security Service dated 24 September 1952. Although the Directive is published, it is not claimed by the Government that it has the force of law or that its contents constitute legally enforceable rules concerning the operation of the Security Service.   Nor does the Directive provide a framework which indicates with the requisite degree of certainty the scope and manner of the exercise of discretion by the authorities in the carrying out of its activities.   40.      The Commission finds that in these circumstances the interference with the applicant's right to respect for private life was not "in accordance with the law' as required by Article 8 para. 2 (Art. 8-2) of the Convention.   41.      In view of the above finding, the Commission considers it unnecessary to examine whether the interference in the present case was necessary in a democratic society within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.           Conclusion   42.      The Commission concludes, by 14 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention in the present case.     C.       Article 13 (Art. 13) of the Convention   43.      The applicant complains under Article 13 (Art. 13) of the Convention that there exists no effective remedy under the law of the United Kingdom in respect of his complaints under Article 8 (Art. 8) of the Convention.   44.      The Government have not commented on the applicant's complaint of a breach of Article 13 in conjunction with Article 8 (Art. 13+8).   45.      Article 13 (Art. 13) provides as follows:           "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."   46.      This provision has been interpreted in the following way by the European Court of Human Rights in the case of Silver and Others (Eur.   Court H.R., Silver and Others judgment of 25 March 1983, Series A no. 61, p. 42 para. 113):           "(a) where an individual has an arguable claim to be         the victim of a violation of the rights set forth in the         Convention, he should have a remedy before a national         authority in order both to have his claim decided and,         if appropriate, to obtain redress (see the ...   Klass and         others judgment, Series A no. 28, p. 29, para. 64);           (b)   the authority referred to in Article 13 (Art. 13) may not         necessarily be a judicial authority but, if it is not,         its powers and the guarantees which it affords are         relevant in determining whether the remedy before it is         effective (ibid., p. 30, para. 67);           (c)   although no single remedy may itself entirely satisfy         the requirements of Article 13 (Art. 13), the aggregate of remedies         provided for under domestic law may do so (see, mutatis         mutandis, ...   X v. the United Kingdom judgment, Series A         no. 46, p. 26, para. 60 and the Van Droogenbroeck judgment         of 24 June 1982, Series A no. 50, p. 32, para. 56);           (d)   neither Article 13 (Art. 13) nor the Convention in general lays         down for the Contracting States any given manner for ensuring         within their internal law the effective implementation of any         of the provisions of the Convention - for example, by         incorporating the Convention into domestic law (see the         Swedish Engine Drivers' Union judgment of 6 February 1976,         Series A no. 20, p. 18, para. 50).           It follows from the last-mentioned principle that the         application of Article 13 (Art. 13) in a given case will depend         upon the manner in which the Contracting State concerned         has chosen to discharge its obligation under Article 1         (Art. 1) directly to secure to anyone within its jurisdiction the         rights and freedoms set out in section I (see ...   Ireland         v. the United Kingdom judgment, Series A no. 25, p. 91,         para. 239)."   47.      The Commission recalls the above conclusion that there is a breach of Article 8 (Art. 8) in the present case.   Article 13 (Art. 13) is applicable in these circumstances.   48.      The Commission has not been informed of the existence of an effective remedy under the law of the United Kingdom in respect of the applicant's complaint under Article 8 (Art. 8) of the Convention. The Commission therefore finds that the applicant does not have an effective remedy as required by Article 13 (Art. 13) of the Convention.           Conclusion   49.      The Commission concludes, by 14 votes to 1, that there has been a violation of Article 13 in conjunction with Article 8 (Art. 13+8) of the Convention in the present case.   D.       Recapitulation   50.      The Commission concludes, by 14 votes to 1, that there has been a violation of Article 8 (Art. 8) of the Convention.   51.      The Commission concludes, by 14 votes to 1, that there has been a violation of Article 13 (Art. 13) of the Convention in respect of the applicant's complaint under Article 8 (Art. 8) of the Convention.     Secretary to the Commission        Acting President of the Commission              (H.C. KRÜGER)                        (J.A. FROWEIN)   APPENDIX I     History of the proceedings before the Commission           Date                            Item   --------------------------------------------------------------------   17 April 1986            Introduction of the application   18 August 1986           Registration of the application     Examination of admissibility     14 December 1987         Commission's decision to invite the                         Government to submit observations                         in writing     2 March 1988            Government's observations     5 May 1988              Applicant's reply   11 October 1988          Commission's decision on admissibility     Examination of the merits     11 October 1988          Commission's deliberations on the merits   11 March 1989            Consideration of the state of proceedings     5 May 1989              Commission's deliberations on the merits                         and final votes     9 May 1989              Commission's adoption of the Report