Application No. 12175/86
Patricia Hope HEWITT and Harriet HARMAN
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 9 May 1989)
- i -
TABLE OF CONTENTS
I. INTRODUCTION
(paras. 1 - 13) .................................... 1 - 2
A. The application
(paras. 2 - 4 ) ............................. 1
B. The proceedings
(paras. 5 - 8) .............................. 1
C. The present Report
(paras. 9 - 13) ............................. 2
II. ESTABLISHMENT OF THE FACTS
(paras. 14 - 22) .................................. 3 - 7
A. The particular circumstances of the case
(paras. 14 - 19 ) ........................... 3 - 5
B. Relevant domestic law
(paras. 20 - 22 ) ........................... 5 - 7
III. OPINION OF THE COMMISSION
(paras. 23 - 60) ................................... 8 - 14
A. Points at issue
(para. 23) .................................. 8
B. Article 8 of the Convention
(paras. 24 - 43) ............................ 8 - 11
C. Articles 10 and 11 of the Convention
(paras. 44 - 49) ............................ 11 - 12
D. Article 13 of the Convention in conjunction
with Article 8
(paras. 50 - 56) ............................ 12 - 13
E. Article 13 of the Convention in conjunction
with Articles 10 and 11 (paras. 57 - 59) .... 14
F. Recapitulation
(para. 60) .................................. 14
APPENDIX I : HISTORY OF THE PROCEEDINGS ............... 15
APPENDIX II : DECISION ON THE ADMISSIBILITY ............ 16 - 28
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 first applicant, Ms Patricia Hope Hewitt, is a United
Kingdom citizen, born in 1948, and resident in London. She was
General Secretary of the National Council for Civil Liberties (NCCL)
between September 1983 and May 1984.
The second applicant, Ms Harriet Harman, is a citizen of the
United Kingdom, born in 1950 and resident in London. She is a
solicitor and a Labour Member of Parliament.
Both applicants are represented, in the proceedings before the
Commission, by Ms Madeleine Colvin, Legal Officer, NCCL, and Mr. Geoffrey
Robertson, Q.C., of counsel.
3. The application is directed against the United Kingdom. The
respondent Government are represented by their Agent, Mr. M. C. Wood,
Foreign and Commonwealth Office.
4. The case concerns the secret surveillance of the applicants by
the Security Service and the consequent gathering and storing of
information about them. The applicants invoke Articles 8, 10, 11 and
13 of the Convention.
B. The proceedings
5. The application was introduced before the Commission on
4 September 1985 and registered on 22 May 1986. On 2 December 1986
the Commission decided in accordance with Rule 42 para. 2 (b) of its
Rules of Procedure to give notice of the application to the respondent
Government and to invite them to present before 16 March 1987 their
observations in writing on the admissibility and merits of the
application insofar as it raised issues under Articles 8, 10, 11 and
13 of the Convention. Following an extension of the time-limit, these
observations were submitted on 29 May 1987. The applicants'
observations in reply were received on 22 December 1987.
6. The application was again examined by the Commission on
12 May 1988 when it was declared admissible.
7. The parties were then invited to submit further observations
on the merits by 5 August 1988. After an extension of the time-limit
the applicants submitted further observations on 19 December 1988. No
further observations were received from the Government.
8. After declaring the case admissible, the Commission, acting in
accordance with Article 28 (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 upon which a friendly settlement can
be effected.
C. The present report
9. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. J. A. FROWEIN, Acting President
F. ERMACORA
E. BUSUTTIL
A. WEITZEL
J. C. SOYER
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
10. The text of this Report was adopted by the Commission on
9 May 1989 and is now transmitted to the Committee of Ministers
of the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
11. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is:
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose a
breach by the State concerned of its obligations under the Convention.
12. 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.
13. 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
14. The first applicant was General Secretary of the NCCL between
September 1983 and May 1984. The second applicant was employed as a
legal officer by the NCCL from 1978 until 1982.
15. The NCCL is an unincorporated association which works to
monitor and defend civil and political rights in the United Kingdom.
Pursuant to its constitution, the NCCL is a non-party and non-
denominational organisation. In order to achieve its aims to
uphold human rights the NCCL works inter alia by briefing and lobbying
Members of Parliament, submitting evidence to official enquiries,
conducting research and issuing publications, and taking test cases to
local and international courts. It sometimes sends impartial
observers to monitor demonstrations as part of its function to defend
the right of freedom of assembly but it does not sponsor or organise
demonstrations.
As revealed by Ms Cathy Massiter, a former intelligence officer
of one branch of the Security Service (MI5) on a television programme
broadcast on 8 March 1985, and in an affidavit dated and sworn for the
purposes of judicial review proceedings in another case, both
applicants were placed by the Security Service in the category of
"communist sympathisers" due to their prominent participation in the
activities of the NCCL.
In her affidavit Ms. Massiter states that the NCCL was
classified as a communist controlled subversive organisation by the
Security Service. As regards the secret surveillance of the
applicants, she states as follows:
"... Harriet Harman has been on record with the security
service since the period when she was an NCCL legal
officer. She has never been the subject of a telephone or
mail intercept through the security services to my
knowledge. However references to her on other intercepts
and contacts with individuals who were themselves the
subject of such intercepts would usually find their way on
to her file. The file would be used as the basis for an
assessment of Ms Harman when she became a parliamentary
candidate. Assessments of newly elected MPs are passed on
to the Cabinet Office where there is information about the
person concerned which might throw doubt upon their security
fitness for inclusion on certain parliamentary committees
requiring access to highly classified and/or sensitive
information. I did not see any assessment of Harriet Harman
but I would think it unlikely that exclusion from any
committees would have been recommended on the basis of her
security service record.
In order to open a file on Harriet Harman the
security service would have to find a category in which to
place her. She was clearly not a member of the Communist
Party of Great Britain. However she was legal officer for
NCCL which had been assessed as a subversive organisation.
The only category open in which to record her was
'Communist sympathiser'. Although she was not a member of
the Communist Party and there was not evidence that she was
sympathetic to the Communist Party, bureaucratically this
was the only appropriate category into which she could be
placed.
Patricia Hewitt was recorded on the same basis as
Harriet Harman. As well as her NCCL connections she was
also known to be living with a member of the Communist Party
of Great Britain although he later left the party. As in
the case of Harriet Harman, up to the time of my leaving the
security service Patricia Hewitt had not at any time been
the subject to a security service initiated telephone or
mail intercept. She was however subject to the same
'indirect interception'.
If someone to whom Harriet Harman or Patricia Hewitt
was talking was subject to an intercept then the tapes of
the telephone conversation would be played to a transcriber.
The transcriber receives a brief and does not transcribe
irrelevant information. Political information was generally
transcribed and personal information might be transcribed.
Everything which has been transcribed from an individual's
conversation is on a linked supplementary file to that
individual's file and a single copy of the entire transcript
is kept and is not destroyed. To the best of my knowledge
and belief the transcriber would not necessarily have
directions to respect doctor patient or lawyer client
relationships or the sub judice rule. The transcript would
be sent to the desk officer who was responsible for the
warrant. If that officer saw the name of someone of
interest to my desk they would pass that part of the
transcript to me. ..."
16. Security service files were described by Ms Massiter
as including the following material:
- fullest possible personal particulars of the
individual (name, date and place of birth, addresses,
occupation, employer and past employment);
- a photograph, usually taken from the individual's
passport application;
- data from surveillance by local police special
branch in the area where he or she lives;
- press reports relating to the individual's
activities and political views;
- references to the subjects in telephone or mail
intercepts operating against other individuals or
organisations;
- references to the subject in agents' reports.
17. The applicants allege that surveillance of both applicants was
continued after they had left the NCCL on the basis that they were
candidates for elected office.
18. The above allegations are neither confirmed nor denied by the
respondent Government. They point out that the policy of successive
governments of the United Kingdom is not to disclose information about
the operations of the security service or to comment on particular
allegations.
19. By a letter dated 21 February 1985 the second applicant wrote
to the Prime Minister (Mrs Margaret Thatcher) seeking confirmation
that she had been subject to surveillance and also seeking access to
her file. Her request was rejected in a letter dated 11 March 1985.
By a letter dated 29 March 1985, addressed to the General Secretary of
the NCCL, the Home Secretary declined to order an enquiry into the
matters of which the applicants complain and failed to provide an
assurance that they are, or the NCCL is, not a target of secret
surveillance.
B. 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 following are the principal points at issue in the case:
- Whether the surveillance of the activities of the applicants
by the Security Service and the consequent compilation and retention
of information concerning their private lives constituted a violation
of their right to respect for private life contrary to Article 8
(Art. 8) of the Convention;
- Whether the above actions of the Security Service
constituted a violation of the applicants' right to freedom of
expression contrary to Article 10 (Art. 10) of the Convention;
- Whether the above actions of the Security Service
constituted a violation of the applicants' right to freedom of
association contrary to Article 11 (Art. 11) of the Convention;
- Whether there exists an effective remedy under the law of
the United Kingdom in respect of the applicants' complaints under
Articles 8, 10 and 11 as required by Article 13 (Art. 8, 10, 11, 13)
of the Convention.
B. Article 8 (Art. 8) of the Convention
24. The applicants complain that they were the subject of secret
surveillance by the Security Service and that information concerning
their activities was compiled and retained by the Security Service.
They claim that, by reason of their association with the National
Council for Civil Liberties (NCCL), they were classified as
"subversives" and "communist sympathisers" by the Security Service.
They contend that the above actions of the Security Service constitute
an unjustified interference with their right to respect for private
life as guaranteed by Article 8 (Art. 8) of the Convention.
25. Article 8 (Art. 8) of the Convention provides 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."
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 applicants' allegations.
27. The Commission recalls 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 1987, Series A no. 116, p. 22
para. 48). It follows that secret surveillance activities for the
purpose of gathering and storing on file information concerning a
person's private life also constitutes an interference with this right
(see, mutatis mutandis, Eur. Court H.R., Klass judgment of 6
September 1978, Series A no. 28; Malone judgment of 2 August 1984,
Series A no. 82).
28. A question arises as to whether the evidence before the
Commission as to the compilation and retention of information
concerning the applicants' private lives leads to the conclusion that
there has been an interference with their right to respect for private
life.
29. The Commission recalls 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 them. 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 private life (see Application No.
12015/86, Dec. 6.7.88, to be published in D.R.).
33. In the present case the applicants have submitted a detailed
affidavit by a former intelligence officer of MI5 which indicates that
the applicants were the subjects of secret surveillance by the
Security Service because of their association with the National
Council for Civil Liberties (NCCL) and that the information gathered
about them comprises inter alia information concerning their private
life and is kept in records maintained by the Security Service.
34. The Commission notes that the applicants do not allege that
they were subjected to telephone or mail intercepts. Nevertheless
Ms. Massiter's evidence states that they had been subject to
"indirect interception", i.e. the recording of information about them
which appeared in the telephone or mail intercepts of others.
35. The interception and recording of such information, even
though the applicants were not directly subject to interception,
amounts in itself to an interference with the applicants' right to
respect for private life and correspondence (see Eur. Court H.R.,
Malone judgment, loc. cit., p.30 para. 64).
36. Against the above background the Commission finds that the
existence of practices permitting secret surveillance has been
established and that there is a reasonable likelihood that the
applicants were the subjects of secret surveillance and that the
Security Service have compiled and retained information concerning
their private lives. It follows that there has been an interference
inter alia with the applicants' right to respect for their private
life under Article 8 para. 1 (Art. 8-1) of the Convention.
37. The Commission must next examine whether this interference is
justified under Article 8 para. 2 (Art. 8-2) of the Convention. It
must first determine whether the interference is "in accordance with
the law".
38. 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).
39. 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 (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."
40. 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 secret surveillance activities.
41. The Commission finds that in these circumstances the
interference with the applicants' 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.
42. 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
43. The Commission concludes, by 13 votes to 2, that there
has been a violation of Article 8 (Art. 8) of the Convention.
C. Articles 10 and 11 (Art. 10, 11) of the Convention
44. The applicants have also complained of an interference with
their freedom of expression as guaranteed by Article 10 (Art. 10) of the
Convention. They state that as a result of the secret surveillance
they and those with whom they are in communication will be deterred
from expressing their true opinions and beliefs. In addition they
submit that their future career prospects and political ambitions may
be prejudiced by being labelled "subversive" by the Security Service.
45. The Government submit that the applicants have at all times
been free to express their opinions and have not substantiated their
allegations.
46. The applicants further complain of an interference with their
right to freedom of association under Article 11 (Art. 11) of the Convention.
They allege inter alia that, as a result of being classified as
subversives, potential supporters of NCCL may have been inhibited
from associating with the applicants.
47. The Government contend that Article 11 para. 1 (Art. 11-1) does
not guarantee a right of association in the sense described by the
applicants and that, in any event, they have not substantiated their
complaints.
48. The Commission considers that the above complaints under
Articles 10 and 11 (Art. 10, 11) of the Convention are based on the
claim that the applicants were the subject of secret surveillance and
that the Security Service has compiled and retained files of
information relating to their private lives. In the opinion of the
Commission it is not necessary to examine these complaints separately
in view of the above finding that these activities constitute a breach
of Article 8 (Art. 8) of the Convention.
Conclusion
49. The Commission concludes, by a unanimous vote, that it is not
necessary to examine separately whether there has been a violation of
Articles 10 and 11 (Art. 10, 11) of the Convention.
D. Article 13 of the Convention in conjunction with Article 8
(Art. 13+8)
50. The applicants complain under Article 13 (Art. 13) of the
Convention that there exists no effective remedy under the law of the
United Kingdom in respect of their complaints under Article 8 (Art. 8)
of the Convention.
51. The Government have not commented on the applicants' complaint
of a breach of Article 13 in conjunction with Article 8 (Art. 13+8) .
52. 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."
53. 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)."
54. 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 such a case.
55. The Commission has not been informed of the existence of an
effective remedy under the law of the United Kingdom in respect of the
applicants' complaint under Article 8 (Art. 8) of the Convention. The
Commission therefore finds that the applicants do not have an
effective remedy as required by Article 13 (Art. 13) of the Convention.
Conclusion
56. The Commission concludes, by 13 votes to 2, that there has been
a violation of Article 13 in conjunction with Article 8 (Art. 13+8) of the
Convention.
E. Article 13 of the Convention in conjunction with Articles 10
and 11 (Art. 13+10+11)
57. As regards the applicants' complaints of a violation of
Article 13 in conjunction with Articles 10 and 11 (Art. 13+10+11), the
Commission recalls that it does not consider it necessary to examine
the complaints relating to Articles 10 and 11 (Art. 10, 11) separately
in view of the finding of a violation of Article 8 (Art. 8) of the
Convention.
58. For the same reasons and in view of the above finding of a
breach of Article 13 in conjunction with Article 8 (Art. 13+8), the
Commission does not consider it necessary to examine separately the
complaint relating to Article 13 in conjunction with Articles 10 and
11 (Art. 13+10+11).
Conclusion
59. The Commission concludes, by a unanimous vote, that it is not
necessary to examine separately the applicants' complaint of a
violation of Article 13 in conjunction with Articles 10 and 11
(Art. 13+10+11) of the Convention.
F. Recapitulation
60. The Commission concludes
- by a vote of 13 votes to 2, that there has been a
violation of Article 8 (Art. 8) of the Convention (para. 43
above);
- by a unanimous vote that it is not necessary to examine
separately whether there has been a violation of
Articles 10 and 11 (Art. 10, 11) of the Convention
(para. 49 above);
- by a vote of 13 votes to 2, that there has been
a violation of Article 13 in conjunction with
Article 8 (Art. 13+8) of the Convention (para. 56 above);
- by a unanimous vote, that it is not necessary to
examine separately the applicants' complaint of
a violation of Article 13 in conjunction with
Articles 10 and 11 (Art. 13+10+11) of the Convention
(para. 59 above).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (J.A. FROWEIN)
APPENDIX I
HISTORY OF PROCEEDINGS
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Date Item
______________________________________________________________________
4 September 1985 Introduction of the application
22 May 1986 Registration of the application
Examination of Admissibility
2 December 1986 Commission's decision to invite
the Government to submit
observations on the admissibility
and merits of the application
29 May 1987 Government's observations
22 December 1987 Applicant's observations in reply
12 May 1988 Commission's decision to declare
the application admissible.
Examination of the merits
9 June 1988 Decision on admissibility transmitted
to the parties
19 December 1988 Applicant's observations on the merits
9 October 1988 ) Commission's consideration of the
11 March 1989 ) state of proceedings
5 May 1989 Commission's deliberations on the
merits and final votes
9 May 1989 Adoption of the Report