AS TO THE ADMISSIBILITY OF
Application No. 20591/92
by George FIRSOFF
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 2 December 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First 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 14 January 1992
by George Firsoff against the United Kingdom and registered on
8 September 1992 under file No. 20591/92;
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 is a British citizen born in 1944. He is not
represented.
The facts of the case as submitted by the applicant may be
summarised as follows.
The applicant is involved with and supports the groups which
attempt to visit Stonehenge each year on the summer solstice. He has
been involved in a number of incidents connected with attempts to gain
entry to the site and has been arrested on at least one occasion.
Between 23 March 1988 and 14 June 1990 there were several
instances of mail having arrived at his home in a damaged state. These
included, inter alia, parcels containing copies of "Festival Eye" and
confidential court papers.
On 14 June 1990, the applicant collected a damaged parcel from
the Post Office. The applicant claims that the package was partly cut
open by a series of short slits, as if a scalpel had been used.
Photographs of the damaged parcel are appended to the application.
The applicant pursued the following potential remedies :
1. On 8 July 1990 an official complaint was made to the Customer
Care Unit of the Royal Mail Parcel Force, a part of the Post Office.
By a letter dated 22 August 1990 the Customer Care Manager informed the
applicant that her impression was that the package was not strong
enough to withstand the pressures of mechanical handling. This is
disputed by the applicant. She offered to send around an enquiry
officer to inspect the original wrapping, and stated that in any case
any further enquiries conducted by the investigation branch of the Post
Office are confidential and that she did not expect to be advised of
the outcome.
2. On 28 August 1990 the applicant instituted proceedings against
the Royal Mail Parcel Force in the County Court for damages for breach
of his human rights in that the parcel which he had picked up on 14
June 1990 had been opened by the Wiltshire police with the consent of
the employees of the Post Office. In an affidavit dated 8 November
1990, the Customer Care Manager stated that in her view the parcel was
insufficiently packaged to limit movement of the contents or to
withstand mechanical handling. The applicant's case was struck out as
disclosing no reasonable cause of action on 21 January 1991. On
20 February 1991 his appeal was rejected by Judge Counsell in the
County Court on the basis of Post Office statutory immunity. An
application for leave to appeal to the Court of Appeal was filed on
16 March 1991 and a hearing before Lord Justice Leggatt took place on
23 October 1991 in the Court of Appeal. The judge concluded that the
difficulty in relation to the applicant's submission was that the
Convention is not part of the law of England. Leave to appeal was
refused.
3. On 5 December 1991 the applicant applied for a ruling from the
Interception of Communications Tribunal. This Tribunal replied on
22 February 1992 to the effect that after investigation it had been
concluded that there had been no contravention of Sections 2 to 5 of
the Interception of Communications Act 1985 in relation to a relevant
warrant or certificate.
Relevant domestic law
The Post Office Act 1969, Section 29 para. 1, states:
"... no proceedings in tort shall lie against
the Post Office in respect of any loss or damage
suffered by any person by reason of -
(a) anything done or omitted to be done in
relation to anything in the post ...".
COMPLAINTS
The applicant complains that his rights under Articles 8 and 10
of the Convention have been abused due to the interference with his
mail.
Furthermore he claims that he does not have an effective remedy
as required by Article 13 of the Convention because
- the Post Office has statutory immunity under Section 29
para. 1 of the Post Office Act 1969;
- the results of the internal Post Office investigation are
not disclosed and no compensation is offered; and
- the Interception of Communications Tribunal has no
jurisdiction to investigate interception of mail complaints
if no warrant for such interception has been issued.
THE LAW
1. The applicant complains that his mail has been interfered with
contrary to Article 8 (Art. 8) of the Convention which 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 Malone case the Court (Eur.
Court H.R., Malone judgment of 2 August 1984, Series A No. 82, p. 31,
para. 64) has held that "the existence in England and Wales of laws and
practices which permit and establish a system for effecting secret
surveillance of communications amount[s] in itself to an 'interference
... with the exercise' of the applicant's rights under Article 8
(Art. 8), apart from any measures actually taken against him."
In the sphere of alleged security service activities, the
Commission has held that it does not consider that the above case-law
can be interpreted so broadly as to encompass every person in the
United Kingdom who fears that a security service agency may have
compiled information about him. However, the Commission has also taken
the view 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 private life (see Application
No. 12015/86, Dec. 6.7.88, to be published in D.R. and No. 12175/86
Comm. Report 9.5.89).
These considerations apply equally in the area of alleged police
surveillance. The Commission notes that in the present case the
applicant does not have positive proof that his mail has been
interfered with. He claims that his mail has been opened, though the
Post Office have given the view that the damage was due to the
packaging not being strong enough to withstand mechanical handling.
The Commission considers that there is insufficient evidence to
indicate that the applicant is a person or a member of a category of
person in respect of whom the police would consider clandestine
interception measures were necessary. Neither is there any concrete
indication that the police are in possession of information obtained
through the interception of the applicant's mail. The applicant has
failed therefore to establish a "reasonable likelihood" that his mail
has been interfered with by the police rather than merely damaged in
transit.
The Commission concludes therefore that the applicant's complaint
fails to disclose a violation of Article 8 (Art. 8) of the Convention.
It follows that his complaint is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains of interference with his mail under
Article 10 (Art. 10) of the Convention. The Commission considers
however that no separate issue arises under Article 10 (Art. 10), as
this complaint is made on the same material facts as those underlying
the claim under Article 8 (Art. 8).
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that he has no effective remedy
for his complaints as required by Article 13 (Art. 13) of the
Convention. The Commission recalls 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 applicant cannot be said, in light
of its findings above, to have an "arguable claim" of a violation of
his Convention rights.
It follows that this complaint must also be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber a.i. President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy