CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 27 novembre 1996

.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. 28122/95                       by Marion HUTCHEON                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 27 November 1996, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 July 1995 by Marion HUTCHEON against the United Kingdom and registered on 3 August 1995 under file No. 28122/95;        Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;        Having deliberated;        Decides as follows:   THE FACTS        The applicant, born in 1954, is Irish and resident in Derry, Northern Ireland.   She is represented before the Commission by Ms. P. Coyle, a solicitor practising in Belfast.   The facts of the application, as submitted by the applicant, may be summarised as follows.        The applicant is a tenant of a house at 67 Rosemount Gardens, Derry, Northern Ireland.   The applicant resides in the said house, which is one dwelling in a row of ten, with her 3 children.        On 19 February 1993 the applicant received a written notice from the Royal Ulster Constabulary stating that a security tower was to be built at Rosemount RUC Station, Derry. The letter stated that the tower was essential for the protection of security forces and the community.        Within 24 hours of receipt of this notice, the Royal Ulster Constabulary constructed a 75ft tower made of corrugated steel and comprising 2 upper surveillance posts.   The tower was constructed on the exterior fence of the Station, facing the applicant's home.        On 28 September 1994 the applicant and other local residents were permitted to enter and mount the tower.   The applicant observed 27 power points but no surveillance equipment except a pair of binoculars. The applicant's belief was that all surveillance equipment had been removed.        Letters written from the applicant to the Northern Ireland Office, requesting the dismantling of the tower, have been to no avail. However the applicant's rates for the said property have been reduced as a result of the proximity of the watch tower, with the net annual rateable value being lowered from £140 to £125.   COMPLAINTS        The applicant complains that the presence of the watch tower and the surveillance mounted from the watch tower, amounts to an interference with her right to respect for her private and family life, her home, and her correspondence, and as such is a violation of Article 8 of the Convention. She believes that her movements and the movements of her family are watched and that her conversations and the conversations of her family are listened to and possibly tape recorded. The presence of the tower became even less justifiable when in September 1994 the IRA declared a ceasefire.        The applicant invokes Article 6 para. 1 of the Convention, alleging she has been denied a fair and public hearing by an independent and impartial tribunal with regard to the protection of her family life and the right she claims to freedom of movement without harassment or intimidation.        The applicant also invokes Article 13 of the Convention asserting she has no effective remedy.   THE LAW   1.    The applicant considers that the building and use of a surveillance tower in close proximity to her house constitutes a violation of her right to respect for her private and family life, her home and her correspondence, and as such is a violation of Article 8 (Art. 8) of the Convention.   Article 8 (Art. 8) of the Convention reads as follows:        "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 where a person can show, or the Government acknowledge, a reasonable likelihood that a public authority has secretly collected information about the person's activities through interception of telecommunications, an interference with the exercise of the rights guaranteed by Article 8 para. 1 (Art. 8-1) may be assumed (No. 21482/93, Dec. 27.6.94, D.R. 78-A p. 119).   The Commission considers that where a person can show, or the Government acknowledge, a reasonable likelihood that a public authority has been secretly collecting information about person's activities through visual surveillance from a tower in close proximity to their home, this would, as with interception of telecommunications, likewise lead to an assumption that there has been an interference with the exercise of the rights guaranteed by Article 8 para. 1 (Art. 8-1).        However the Commission finds in this case that the applicant has not shown a reasonable likelihood that any information about the applicant has been secretly collected by either audio or visual means. It is not substantiated that her house would have been the object of any individual scrutiny or surveillance, beyond the general oversight afforded by the location of the tower. Nor is it apparent from the material provided by the applicant the extent to which the tower was used or over what period.        Even assuming however there has been an interference, the Commission finds that this may be regarded as justified under Article 8 para. 2 (Art. 8-2) of the Convention.        The Commission recalls that Article 8 para. 2 (Art. 8-2) of the Convention provides that there shall be no interference with the rights guaranteed therein unless the interference is "in accordance with the law", pursues one or more of the legitimate aims referred to in paragraph 2 of Article 8 (Art. 8-2) and is "necessary in a democratic society" (see for example, Eur. Court H.R., Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 52, para. 25).        There is no allegation by the applicant, and nothing in the application to suggest, that the construction of the surveillance tower was contrary to the law.        In the case of secret surveillance by a public authority, the law itself must define the scope and manner of exercise of a public authority's functions with sufficient clarity to protect the individual against arbitrariness.        The system of supervision imposed by legislation, the Interception of Communications Act 1985, requiring the issue of a warrant by the Secretary of State and empowering a Tribunal and Commissioner to review individual cases, investigate complaints and award compensation, had previously been found by the Commission to comply with the requirements of Article 8 para. 2 (Art. 8-2) (see No. 21482/93, Dec. 27.6.94, D.R. 78-A p. 120). The Commission notes that notwithstanding her allegations that her telephone conversations are being intercepted, the applicant has not sought to make any complaint pursuant to the procedures set up under the Interceptions of Communications Act 1985.         With regard to any visual surveillance, and assuming such would constitute an interference of the applicant's rights under Article 8 para. 1 (Art. 8-1), the Commission takes the view that this fell within the normal duties of the Royal Ulster Constabulary and as such may be deemed to be "in accordance with the law".        The Commission recalls that the Royal Ulster Constabulary stated that the tower was essential for the protection of security forces and the community.   The Commission is satisfied that any interference may be regarded as pursuing the legitimate aims of the interests of national security, public safety and the prevention of disorder or crime.   As regards the necessity of the measure, the Commission notes that the State has a wide margin of appreciation in matters of national security. The Commission considers that the building and use of a surveillance tower was well within this margin of appreciation. As regards the applicant's submissions that with the imposition of a ceasefire in August 1994 the continued presence of the tower became even more disproportionate, the Commission considers that the authorities could not unreasonably have required a certain passage of time before regarding events as establishing an end to security threats.        In these circumstances the Commission finds that any interference in the present case may be regarded as necessary in a democratic society in the interests of national security and public safety and for the prevention of disorder or crime.        It follows that this part of the complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention, alleging she has been denied a fair and public hearing by an independent and impartial tribunal, with regard to the protection of her family life and the right she claims to freedom of movement without harassment or intimidation.        Article 6 para. 1 (Art. 6-1) of the Convention, so far as relevant, states:        "In the determination of his civil rights and obligations or of      any criminal charge against him, everyone is entitled to a fair      and public hearing within a reasonable time by an independent and      impartial tribunal established by law."        The Commission recalls that Article 6 para. 1 (Art. 6-1) applies only to disputes ("contestations") over rights and obligations which can be said, at least on arguable grounds to be recognised under domestic law.   It does not in itself guarantee any particular content for "rights and obligations" in the substantive law of Contracting States nor does it require that there be a national court with competence to invalidate or override national law (Eur. Court H.R., James and others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, p. 46 para. 81; Lithgow and others v. the United Kingdom judgment of 8 July 1986, Series A no. 102, p. 70, para. 192). It is also established case-law that Article 6 para. 1 (Art. 6-1) guarantees to everyone who claims that an interference with his "civil rights" is unlawful, the right to submit that claim to a tribunal satisfying the requirements of that provision (Eur. Court H.R., Le Compte, Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43, p. 20, para. 44).   The claim or dispute, however, must be of a "genuine and serious nature" (Eur. Court H.R., Benthem judgment of 23 October 1985, Series A no. 97, p. 14, para. 32).          As to whether there is a dispute as to any of the applicant's civil rights or obligations, the Commission recalls that the applicant does not seek to argue that the building of the tower or the surveillance was contrary to domestic law in any way. She has referred in general terms to a civil right to protection of her family life and freedom of movement free from harassment without indicating any substantive basis in domestic law applicable to the facts of this case. In these circumstances the Commission considers that there cannot be said to be any dispute or any dispute of a "genuine" or "serious nature", as to any civil right or obligation within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.        It follows that this part of the complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.    The applicant also invokes Article 13 (Art. 13) of the Convention asserting she has no effective remedy.        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 not withstanding that the violation has been      committed by persons acting in an official capacity."        The Commission recalls that Article 13 (Art. 13) of the Convention requires a remedy in domestic law only in respect of grievances which can be regarded as "arguable" in terms of the Convention (Eur. Court H.R., Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14, para. 31).   The Commission finds that the applicant cannot be said, in the light of its finding above, to have an "arguable" claim that her rights guaranteed by the Convention have been violated.   It follows that this complaint must also be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber