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
Full & Egal Universal Law Academy