AS TO THE ADMISSIBILITY OF
Application No. 12327/86
by Ian NIMMO
against the United Kingdom
The European Commission of Human Rights sitting in private on
11 October 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 17 April 1986
by Ian NIMMO against the United Kingdom and registered on 18 August
1986 under file No. 12327/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
.PA:12327/86
THE FACTS
The applicant is a British citizen, born in 1957 and resident
in Welwyn. The applicant is represented by Ms Marie Staunton of the
National Council of Civil Liberties (N.C.C.L.). The facts as submitted
by the applicant may be summarised as follows.
The applicant is a financial analyst. On 6 September 1985 the
applicant attended an interview at M.E.L., a member of the Philips
Electronic and associated industries group, in connection with a
vacancy for a financial analyst. The post involved providing an
accounting service to the electronic warfare division, which dealt,
inter alia, with Government defence contracts. He was informed by the
Senior Personnel officer that he would have to go through a vetting
procedure.
On 13 September the applicant attended a second interview and
he was verbally offered the post subject to security clearance. The
applicant was not himself asked to provide any references. A few days
later, the applicant received a letter from M.E.L., dated 13 September
1985, offering him the position of financial analyst "subject to our
obtaining satisfactory references". By letter of 19 September the
applicant accepted the offer and the conditions and terms of
employment referred to in the letter.
The applicant was subsequently informed by letter of 22 October
from M.E.L. that "references have not proved satisfactory. We shall
not therefore be proceeding with an unconditional offer of employment."
The applicant knew of no reason which could have been
responsible for his failure to obtain security clearance. At no time
did any person in authority inform the applicant that information
relevant to his security status had been obtained or retained or that
it had been used in connection with his job application. Further, at
no time did any such person give him an opportunity to know the
contents of that information so that its accuracy could be checked or
so that the applicant could comment upon it. The applicant believes
that security clearance procedures are operated in connection with
applications for all jobs in private sector companies who are engaged
in defence contracts and that such procedures are carried out by
and/or at the insistence of the Security Services of the United
Kingdom.
On 6 January 1986, the N.C.C.L wrote to the Cabinet Office
(Security Division) to inquire whether the "Three Advisers" procedure
permitted an appeal by an individual such as the applicant, who had
applied for a post in a commercial company engaged in defence
contracts and had been refused on security grounds. By this
procedure, an existing employee, who is found to be unsuitable on
security grounds, may appeal either in writing or in person, to the
Minister in charge of the department to which the firm was contracted
and then to the "Three Advisers". The Cabinet Office replied by
letter of 27 February 1986 that the appeal procedure of the "Three
Advisers" only applied to existing employees of companies engaged in
classified Government work and not to applicants for employment.
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COMPLAINTS
1. The applicant complains that he has suffered the ban of a
career as a financial analyst in the electronics industry. He has not
only been unable to take the post at M.E.L. but since many large
electronics companies are involved in Government contracts, his
inability to satisfy clearance procedures considerably narrows the
field in which he can apply for jobs.
He contends that the obtaining, retention and application of
personal information about himself so as to adversely affect this job
application, without any opportunity to know of that exercise or to
comment on the accuracy of the information and the continuing
retention of such information in such circumstances, constitutes a
breach of his right to respect for his private life. The applicant
relies on Leander v. Sweden (Application No. 9248/81, Comm. Rep. of
17.5.85), X v. the United Kingdom (Application No. 8065/77, Dec.
3.5.78, D.R. 14 p. 246) and X v. Austria (Application No. 8170/78,
Dec. 4.5.79, D.R. 16 p. 145).
The applicant argues that the obtaining, retention and
application of personal information is not "in accordance with law"
and that the relevant law, if any, is not adequately accessible or
formulated. He also states that the job for which he applied could
not be said to have implications for national security and that there
were no adequate safeguards to ensure the relevant procedures operated
fairly and effectively.
The applicant invokes Article 8 of the Convention.
2. The applicant further invokes Article 13 of the Convention in
that he has no effective remedy before a national authority in respect
of the matters of which complaint is made.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 April 1986 and registered
on 18 August 1986. On 14 December 1987, the Commission decided,
pursuant to Rule 42(2)(b) of the Commission's Rules of Procedure, to
bring the application to the notice of the respondent Government and
to invite them to submit observations on the admissibility and merits.
On 2 March 1988, the respondent Government submitted its
observations and on 5 May 1988 the applicant submitted his
observations in reply.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
The respondent Government contend that it is unclear to what
extent the applicant's complaints relate to the acts of M.E.L. The
applicant complains about the obtaining, retention and application of
personal information and states inter alia that the object of his
claim is to obtain confirmation that no data concerning his activities
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are retained by M.E.L., or if there are, to know the contents of such
data so that he can check their accuracy. To the extent therefore
that the applicant complains of the acts of M.E.L., the Government
submit that the application is incompatible ratione personae with the
Convention.
The Government reserves the right to submit observations on
the merits if the application is declared admissible.
B. The applicant
The applicant in reply emphasises that M.E.L. is a government
contractor in the area of defence and that it is his belief that
security clearance and associated enquires carried out by M.E.L. are
done by, or at the insistence of the Security Services and/or the
Ministry of Defence. The violations alleged are therefore not solely
the responsibility of M.E.L. but also that of the Security Services
and/or the Ministry of Defence to the extent that they were involved
or are responsible for the matters complained of.
By reason of the circumstances of the case, the applicant has
no knowledge of the precise role played by the security services or
the Ministry of Defence, but enquiries and a security clearance on the
applicant were carried out and it must be presumed that they were
carried out by the security services. It is also reasonable to infer
that the procedures for such a clearance were agreed at a senior level
within the Ministry of Defence, the security services and M.E.L., and
that M.E.L. implemented those procedures in liaison with the Security
Services and/or the Ministry of Defence. It is to be reasonably
presumed that the Security Services used personal information about
the applicant which it had obtained, that it then made an assessment
about the applicant, and that it then gave advice to M.E.L. about the
employment or non-employment of the applicant.
A further matter of concern to the applicant is whether files
containing personal information are kept on him by the security
services. The Government's observations do not indicate whether or
not this is the case, but their retention for future use might well
impair his career prospects and his promotion opportunities.
Accordingly, the applicant would state that the object of his
application is to obtain confirmation that no data concerning his
private activities are retained by M.E.L. or the security services or,
if they are, to know the contents of such data so that he can check
their accuracy.
To the extent that the applicant's complaint relates to the
actions of the Ministry of Defence or the Security Services, such
actions engage the responsibility of the United Kingdom. To the
extent that the complaint relates to the actions of M.E.L. it is
submitted that such actions also engage the responsibility of the
United Kingdom by reason of the matters set out above.
THE LAW
The applicant complains of the obtaining, retention and
application of personal information about himself in relation to his
application for a post at M.E.L. He invokes Articles 8 and 13
(Art. 8, 13) of the Convention in relation to his complaints.
1. Insofar as the applicant appears to complain of the obtaining,
retention and application of personal information about himself by
M.E.L., 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 directed against private
individuals or private enterprises, such as M.E.L. In this respect
the Commission refers to its established case-law (see e.g. No.
172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215 and No. 9022/80, Dec.
13.7.83, D.R. 33 pp. 21, 27).
It follows that this part of the application is incompatible
ratione personae with the provisions of the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant complains however that the security clearance
procedure applied to him which involved the obtaining, retention and
application of personal information about him, was carried out by or
at the insistence of the security services of the United Kingdom. He
submits that this constitutes a breach of his right to respect for his
private life contrary to Article 8 (Art. 8) of the Convention and that the
resulting interference is not "in accordance with law", that the
relevant law, if any, is not adequately accessible and that there are
no adequate safeguards against abuse.
Article 8 (Art. 8) of the Convention 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 Leander case, the European
Court of Human Rights held 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 1957, Series A No. 116, p. 22,
para. 48).
The Commission has considered whether the applicant has
sufficiently proved the compilation and retention of a dossier
concerning him. The Commission recalls that in the Klass case, the
Court stated, concerning the requirement of proof of secret measures,
that:
"an individual may, under certain conditions, claim to be
the victim of a violation occasioned by the mere existence
of secret measures or of legislation permitting secret
measures, without having to allege that such measures were
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in fact applied to him. The relevant conditions are 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" (Eur. Court H.R.,
judgment of 6 September 1978, Series A No. 28, pp. 18-19,
para. 34).
The Commission does not consider that this passage can be
interpreted so broadly as to encompass every person in the United
Kingdom who considers that the security service may have compiled
information about him. The Commission refers in this respect to its
previous case-law in which the situation in the Klass case (loc. cit.)
where the legislation potentially affected all users of postal and
telecommunications services was distinguished from those cases in
which the category of persons likely to be affected by the measures in
question was not similarly open-ended. On the other hand, the
Commission considered that it should be possible in certain cases to
raise such a complaint without the necessity of proving the existence
of a file of personal information. To fall into the latter category
the Commission was of the opinion that applicants must be able to show
that there is, at least, a reasonable likelihood that the Security
Services have compiled and continues to retain personal information
about them (see e.g. Application No. 12015/86, Dec. 6.7.88).
In the present case, the Commission recalls that the applicant
applied for a post in a company which dealt with Government defence
contracts and in connection with which he was told he would be
subjected to a vetting procedure. On 13 September 1985, the applicant
was offered the post by M.E.L. subject to the results of security
clearance but was subsequently informed by letter of 22 October 1985
that he would not in fact be offered the post. The Commission finds
in these circumstances that there is a reasonable likelihood that the
refusal of the post was connected with compilation and retention by
the Security Services of personal information concerning the applicant.
The Commission considers that, in light of the above matters,
the applicant's complaints under Article 8 (Art. 8) of the Convention
raise complex issues of law and fact, the determination of which
should depend on an examination of the merits of the complaints.
3. The applicant also complains that he has no effective remedy
before a national authority in respect of the matters of which
complaint is made.
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 notwithstanding that
the violation has been committed by persons acting in an
official capacity."
The Commission considers that this part of the application
also raises complex questions of law and fact, the determination of
which should depend on an examination of the merits of the application
as a whole.
For these reasons, the Commission
DECLARES INADMISSIBLE&S the applicant's complaints
directed against M.E.L.;
DECLARES ADMISSIBLE&S, without prejudging the merits,
the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)