CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 octobre 1992

.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 }                                  PARTIAL                         AS TO THE ADMISSIBILITY OF                       Application Nos. 18600/91, 18601/91 and 18602/91                       by T.D., D.E. and M.F.                       against the United Kingdom           The European Commission of Human Rights sitting in private on 12 October 1992, the following members being present:                MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    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 applications introduced on 24 May 1990, 26 March 1991 and 4 April 1991 by T.D., D.E. and M.F. against the United Kingdom and registered on 25 July 1991 under file Nos. 18600/91, 18601/91 and 18602/91;         Having regard to   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;     -      the observations submitted by the respondent Government on       13 and 28 May 1992 and the observations in reply submitted by the       applicant on 13 August 1992;         Having deliberated;         Decides as follows:         THE FACTS         The applicants are represented by Ms. Madeleine Colvin of LIBERTY.   The facts as submitted by the parties may be summarised as follows:           THE FIRST APPLICANT         The first applicant is a British citizen born in 1956 and resident in Turkey.   He is a teacher by profession.         On 10 October 1989, the applicant was informed that he had been recommended by the Civil Service Commissioners for appointment as an Intelligence Officer Grade II in the Ministry of Defence (Army Department) subject to satisfactory completion of enquiries into "age, health and other matters".   On 24 November 1989, he was informed by the Ministry of Defence that the Army Department was unable to proceed with his application. The Government submit that the post entailed access to top secret information and required positive clearance.         While at university, the applicant was actively involved in left- wing student policies, in particular, he was from 1978 to 1979 a member of the International Marxist Group.   He has worked in Poland, West Germany and Turkey.   His political views have since changed and he delivered leaflets for the Conservative Party in the 1987 general election.         He applied on 15 May 1990 to the Security Services Tribunal.   He alleged that he had been subject to "negative vetting" involving the disclosure of information on him collected and held by the Security Service, which was likely to be used in the future in similar circumstances.         By letter dated 30 October 1990 from the Tribunal, the applicant was informed that his complaint had been investigated but no determination had been made in his favour.         THE SECOND APPLICANT         The second applicant is a British citizen born in 1940 and resident in London.   He is a clerical officer by profession.         On 11 June 1990, he was offered a post as Administrative Officer at the Central Office of Information (hereinafter "the COI") "subject to the satisfactory completion of our enquiries into your age, health and other matters".         By letter dated 19 July 1990, the COI informed the applicant that "having completed our inquiries ... we are unable to offer you an appointment."   No further explanation was given.         At the time of his application, the second applicant had been a member of the Communist Party of Great Britain for many years.   He had also been active in the Campaign for Nuclear Disarmament (CND), anti- apartheid and various anti-deportation campaigns.   In 1977, he had been arrested and fined £15 for obstruction of the police at the Grunwick industrial dispute and in 1984 arrested and cautioned after a CND demonstration.           The applicant unsuccessfully attempted to discover the reasons for the refusal of the post at COI through his Member of Parliament.         On 1 November 1990, the applicant submitted an application to the Security Services Tribunal alleging that the Security Services had provided "vetting information" on him to the COI with the result that their offer of employment was withdrawn.         On 14 January 1991, the Tribunal Secretary replied that his complaint had been investigated and that no determination in his favour had been made.         THE THIRD APPLICANT         The third applicant is a British citizen born in 1945 and resident in Padham.   He is an air traffic engineer.         From 1962 to 1973, the applicant served in the Royal Air Force. He then worked on a number of short-term contracts in the Middle East until 1988.         In 1989, he applied for a post of Air Traffic Engineer with British Aerospace Ltd.   He was interviewed on 27 September 1989 and given the distinct impression that he would be offered the job subject to a security clearance because of his many years working outside the United Kingdom.         By letter of 10 January 1990, British Aerospace informed the applicant, without giving reasons, that his job application would not be successful.   An acquaintance from the company who worked in a senior position informed him off the record that the security people objected to him on the grounds of his time overseas. The Government have submitted that the post entailed entry to classified sites.         The applicant has no previous convictions and has never belonged to a political party or trade union.   He applied to the Security Services Tribunal on 2 October 1990 alleging that he was refused the post because of adverse reports from a security vetting.   By letter of 6 December 1990, he was informed that the Tribunal had investigated his complaint but had made no determination in his favour.           Relevant Domestic Law and Practice         The Security Service Act 1989 is intended to place the Security Service on a statutory basis.         Section 1 provides:         "(1) There shall continue to be a Security Service (in this       Act referred to as "the Service") under the authority of       the Secretary of State.         (2) The function of the Service shall be the protection of       national security and, in particular, its protection       against threats from espionage, terrorism and sabotage,       from the activities of agents of foreign powers and from       actions intended to overthrow or undermine parliamentary       democracy by political, industrial or violent means.           (3) It shall also be the function of the Service to safeguard the       economic well-being of the United Kingdom against threats posed       by the action or intentions of persons outside the British       Islands."           The Act provides in Section 4 for the appointment of a Security Service Commissioner, who has inter alia the function of reviewing the exercise by the Secretary of State of the power to issue warrants to enter or interfere with property.   He makes an annual report to the Prime Minister, who must lay a copy before Parliament, though material prejudicial to the continued discharge of the functions of the Security Service may be excluded.       Pursuant to Section 5, a tribunal has been set up to investigate complaints about the Security Service.   The scope and manner of the investigation is set out in Schedule 1.     COMPLAINTS         The applicants complain that information as to their private lives was kept on secret files by MI5 and/or police special branches and/or the Police National Computer and/or the Government Communications Headquarters (GCHQ).   They submit that it is at very least reasonably likely that the intelligence services have compiled and retained information about their private lives and this, taken with the existence of practices permitting secret surveillance, constitutes an infringement of Article 8 para. 1 of the Convention.   The use of this information in the course of negative vetting procedures is an additional interference, especially since they did not have the opportunity to refute the information in question.         The applicants further submit that the interference was not in accordance with law since there is no law governing the compilation and use of information by police special branches, the police national computer or GCHQ.   While the Security Service Act 1989 was passed in response to applications before the Commission, they submit that it only covers the activities of MI5 and in any case fails to offer an adequate definition of the function of the Security Service.   Further, the Security Service Tribunal set up by the Act does not provide adequate protection from abuse.         The applicants submit that the interference fails to satisfy the other criteria of Article 8 para. 2 of the Convention.   In particular, the Tribunal does not offer adequate and effective protection against abuse since it only has jurisdiction over the Security Service and cannot consider the correctness of the Security Service decisions on whether the Service was justified in retaining the records of its enquiries.   Moreover, its jurisdiction is further limited where enquiries are made by the Service on the ground that a person is a member of a category of persons regarded by the Service as requiring investigation.   The Tribunal is also prevented from giving reasons for its decisions.         The applicants also complain that they had no effective remedy in respect of their complaints, contrary to Article 13 of the Convention.         PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 24 May 1990 and registered on 25 July 1991.         On 12 December 1991 the Commission decided to communicate the application to the respondent Government and to ask for written observations on the admissibility and merits of the application.           The Government's observations were submitted on 13 and 28 May 1992 after one extension in the time-limit and the applicant's observations in reply were submitted on 13 August 1992 also after one extension in the time-limit.   THE LAW   A. The first and third applicants   1. Article 8 (Art. 8) of the Convention         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 first and third applicants complain that information as to their private lives has been compiled and retained by the Security Service or other agency in violation of Article 8 (Art. 8) of the Convention. They allege that this claim is substantiated by the way their job applications were initially successful, then rejected following enquiries for the purpose of security clearance.         The Government have submitted that the job   applications of the first and third applicants were not referred to the Security Service or other agency since their long residence abroad rendered it impossible to carry out a satisfactory security clearance.         The Commission recalls that the problem of security service files in the United Kingdom arose in two previous cases - Hewitt and Harman v. the United Kingdom, Comm. Report 9.5.89, and N. v. the United Kingdom, Comm. Report 9.5.89.         The latter case concerned the allegations by the applicant that he was refused a post in an electronics firm in circumstances giving rise to the suspicion that he had failed to obtain a security clearance.   The Commission said that a security check per se was not incompatible with Article 8 (Art. 8) but that an interference occurs when security checks are based on information about a person's private life.   As in the present applications, the applicant had no concrete proof that the Security Service had compiled and continued to retain personal information about him.         The Commission noted:         "... 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).         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.).         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).         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.)."           The Commission recalls that in the present case the first and third applicants had applied for posts in the Ministry of Defence and British Aerospace respectively. The Government have submitted that the former would entail access to "top secret" information   and the latter entry to classified sites and accordingly the successful candidates for the posts would have to obtain a security clearance.         The Commission sees no ground for rejecting the Government's contention that the long periods of residence abroad rendered a security check impossible in these cases. The first applicant has argued that a security check is the only explanation for the delay of six weeks between being recommended by the Civil Service Commission and being rejected by the Ministry of Defence. The Commission however does not consider that the delay is such as to support that inference. The applicants also dispute the Government's version on the basis that it amounts to a de facto bar on any person who has lived abroad in which case such persons would not be invited for interview in the first place. The Commission notes however that only a very small percentage of posts require security clearance. Neither the Civil Service Commission nor British Aerospace carried out security clearance procedures which it appears were the responsibility of the Ministry of Defence.   The third applicant also submits that he knows of other persons at Britsh Aerospace who were appointed despite periods of residence abroad. The Commission   however is unable to give this assertion any weight in the absence of any concrete indication that the posts or the persons concerned were comparable in security terms.         In light of the above, the Commission finds that the first and third applicants have failed to establish that there is a reasonable likelihood that the Security Service or other agency have compiled or retained information about their private life. Consequently, their complaints do not disclose any interference with their right to respect for their private life as guaranteed by Article 8 para. 1 (Art. 8-1) of the Convention.         It follows that these complaints must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2. Article 13 (Art. 13) of the Convention         The first and third applicants complain that they do not have an effective remedy in respect of their complaints as required by Article 13 (Art. 13) of the Convention which 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 recalls however that Article 13 (Art. 13) does not require a remedy under domestic law in respect of any alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, para. 52).         The Commission finds that the applicants cannot be said, in light of its findings above, to have an "arguable claim" of a violation of their Convention rights.         It follows that this complaint must be rejected as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   B. The second applicant         The second applicant complains also that information concerning his private life has been compiled and retained by the Security Service or other agency. He invokes Articles 8 and 13 (Art. 8, 13) of the Convention.         The Government submit that there is not sufficient material to support his claim of an interference.         The Commission notes that this applicant was refused a post in the Central Office of Information after   initial approval had been given subject to satisfactory completion of "enquiries". The factor of residence abroad played no role in this case.         The Commission concludes that serious issues of fact and law arise which require further examination. It therefore adjourns consideration of this application.             For these reasons, the Commission by a majority           DECLARES INADMISSIBLE Applications Nos. 18600/91 and 18602/91;         ADJOURNS the examination of Application No. 18601/91.     Secretary to the Commission             President of the Commission            (H.C. KRÜGER)                           (C. A. NØRGAARD)