AS TO THE ADMISSIBILITY OF
Application No. 19173/91
by J.S.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 8 January 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
G.B. REFFI
Mrs. M.F. BUQUICCHIO, 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 7 September 1992
by J.S. against the United Kingdom, and registered on
9 September under file No. 19173/91;
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 1947. She lives in
Holsworthy in Devon and is represented before the Commission by her
husband.
The applicant's husband took out an insurance policy covering
loss of income through disability to work by reason of ill-health or
disability. He claimed on the policy in late 1984, and after
proceedings were instituted, the High Court in April 1988 found in the
applicant's husband's favour and awarded £750,000, payable in
instalments until retirement age.
After the trial the applicant and her husband moved to Devon.
Notwithstanding the move, the applicant considers that she and her
husband have been subjected to surveillance by the insurance company.
In particular, they list:
- a telephone call in early 1990, allegedly from the Department
of Health and Social Security, asking for personal details;
- a visit in November 1990 from a private detective, sent by the
insurance company;
- other surveillance by the insurance company, including the
applicant's and her husband's house being watched on at least
four occasions between February and October 1990.
In December 1990 the insurance company wrote a letter to the
applicant's husband which included the following:
"We hereby categorically deny that any person has, with our
knowledge, authority or consent:-
(a) contacted your bank purporting to be or to represent either
you or your wife;
(b) telephoned you whilst impersonating a representative of the
Department of Social Security;
(c) removed or stolen your diary or any of your papers or
possessions.
These are very serious allegations. You refer to the existence
of a tape recording and we shall be obliged if you will loan us
the said tape, together with any other evidence in your
possession, in support of these complaints. We undertake to
preserve them and return the same to you unharmed within ten
days. It is imperative that we establish whether indeed someone,
purporting to represent this company, has been involved in any
such activities.
...
[in accordance with a further medical examination ...] we
arranged for a local independent representative to enquire as to
your medical condition. This enquiry was carried out openly and
without deception. Our representative called at your house and
he produced his identity document. He informed you that
seeking information regarding your illness or medical condition.
You invited him in, asking him firstly to wait in your kitchen
whilst you put your dogs away. You then offered him tea in your
living room and conversed for a considerable period of time. We
are told that the meeting was conducted amicably in an affable
manner.
If you had objected to his presence, you need only have
discontinued the conversation and asked him to leave. We
unreservedly apologise, however, if the meeting has caused
distress either to you or your wife. Certainly none such was
intended nor was our representative aware that you felt
inconvenienced."
The applicant has also submitted an extract from "Bella" magazine
in which the insurance company is quoted as saying: "... to protect our
policy-holders it is necessary to monitor claimants' progress. We have
explained this to Mr. Stevens and unreservedly apologised for any
distress caused."
The applicant has been having recurrent nightmares about the
insurance company and about feeling unable to get away from prying
eyes. Her consultant in clinical psychology has stated that her
memory, concentration and relationships have been greatly impaired,
that she has been afraid to go out, speak to people or even open the
door: she feels that she had no privacy and her every action was
observed and adversely commented on. She has been involved in psycho-
therapy since January 1991.
In June 1991 the applicant applied for legal aid to sue the
insurance company for harassment and to obtain an injunction and
damages. The application for legal aid was refused on 24 June 1991 and
her appeal to the legal aid area office was refused on 21 August 1991.
Requests for criminal proceedings to be brought have been rejected
several times, the latest being on 29 August 1991 when the police
informed the applicant that they could take no further action.
COMPLAINTS
The applicant complains that the United Kingdom has failed to
provide any form of redress for individuals or groups whose privacy has
been violated. She alleges a violation of Articles 1, 6, 8 and 13 of
the Convention.
In connection with Article 6 of the Convention, the applicant
states that if there is no right in domestic law, then a hearing is
denied.
In connection with Article 8, the applicant points out that
without any remedy citizens cannot enforce their right to privacy.
In connection with Article 13, the applicant states that her
right to privacy has been violated, and that she has no remedy.
THE LAW
The applicant alleges violation of Articles 1, 6, 8 and 13
(Art. 1, 6, 8, 13) of the Convention, alleging principally that her
privacy has been violated and that United Kingdom law fails to provide
any means for her to seek redress.
The Commission recalls that, under Article 25 para. 1
(Art. 25-1) of the Convention, it may only receive an application from
a person, non-governmental organisation or group of individuals where
the applicant alleges a violation by one of the Contracting Parties of
the rights and freedoms set out in the Convention and where that Party
has recognised this competence of the Commission. The Commission may
not, therefore, receive applications against private individuals, such
as the insurance company in the present case. The Commission further
recalls, however, that the obligation to secure the effective exercise
of Convention rights may involve positive obligations of a State, and
that these obligations may involve the adoption of measures even in the
sphere of the relations of individuals between themselves (cf. Eur.
Court H.R., X and Y v. the Netherlands judgment of 26 March 1985,
Series A no. 91, p. 11, para. 23).
In the present case, the Commission notes that the only
interference with the applicant's private life which is accepted by the
insurance company is the visit by the company's "independent
representative" which apparently passed off without undue incident.
In addition to that visit, reference is made by the applicant to a
magazine article in which the insurance company is seen to have
accepted that it "monitors claimants' progress".
The Commission finds no indication in the present case that the
activities of the insurance company were conducted in a way which could
give rise to positive obligations on the part of the State. In
particular, the Commission notes that the insurance company's
activities were directed to protecting its position in litigation
which had taken place between the applicant's husband as plaintiff and
the company, and that there is no reason to suppose that the insurance
company was conducting any kind of "vendetta" against the applicant or
her husband.
Finally, the Commission notes that the applicant has not
suggested that the activities she complains of on the part of the
insurance company are continuing, nor has she suggested that there is
approval, tacit or express, on the part of the State authorities of the
subject matter of her complaints.
In these circumstances, the Commission finds the application
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.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (J.A. FROWEIN)
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