FIRST CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 20271/92
by Vanessa REDGRAVE
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
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 14 April 1992 by
Vanessa REDGRAVE against the United Kingdom and registered on 2 July
1992 under file No. 20271/92;
Having regard to :
- the observations submitted by the respondent Government on
28 January 1993 and the observations in reply submitted by the
applicant on 30 April 1993;
- 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 1937 and resident in
London. She is represented before the Commission by Simons Muirhead &
Burton, solicitors practising in London. The facts as submitted by the
parties may be summarised as follows.
The applicant is a well-known actress who has been associated
in the past with domestic and international political causes. She was
previously member of the Workers' Revolutionary Party and is now member
of the Marxist Party which formed out of a split in 1985 of the
Workers' Revolutionary Party.
In February 1991, the applicant discovered an electronic
listening device in a house which she owned and used for meetings with
political colleagues.
The applicant believes that the device was installed on or on the
behalf of the British Security Service and used to conduct secret
surveillance and /or to eavesdrop upon her private conversations. This
belief is based, inter alia, on documents released to the applicant
under the Freedom of Information Act in the USA, which reveal that her
political activities in the United Kingdom have been under close and
sustained surveillance for a number of years.
After the discovery of the device, a claim was made to the
applicant's legal representatives by H., a member of the Workers'
Revolutionary Party to which the applicant had previously belonged,
that he had designed and made the device. If this is true, which the
applicant is not in a position to verify, the applicant believes that
H. may have been involved as an agent, willing or otherwise of the
Security Service. Entries in the documents obtained from the US
authorities contain information which could only have been obtained by
a person present or able to overhear particular political meetings and
suggests that the surveillance of the applicant involved the use of
purported sympathisers to infiltrate the groups to which the applicant
belongs.
On 30 July 1991, the applicant submitted a complaint to the
Security Service Tribunal, a body established under the Security
Service Act 1991, alleging that the Security Service may have been
responsible for the installation and monitoring of the listening
device.
By letter dated 22 October 1991 the Tribunal informed the
applicant that no determination in her favour had been made.
Relevant domestic law and practice
The Security Service
The Security Service Act 1989 places the Security Service
on a statutory basis.
It provides inter alia:
"1. (1) There shall continue to be a Security Service (in this
Act referred to as "the Service") under the authority of the
Secretary of State.
(2) The function of the Service shall be the protection of
national security and, in particular, its protection against
threats from expionage, terrorism and sabotage, from the
activities of agents of foreign powers and from actions intended
to overthrow or undermine parliamentary democracy by political,
industrial or violent means.
(3) It shall also be the function of the Service to safeguard the
economic well-being of the United Kingdom against threats posed
by the actions or intentions of persons outside the British
Islands.
2. (1) The operations of the Service shall continue to be under
the control of a Director-General appointed by the Secretary of
State.
(2) The Director-General shall be responsible for the efficiency
of the Service and it shall be his duty to ensure
(a) that there are arrangements for securing that no
information is obtained by the Service except so far as
necessary for the proper discharge of its functions or
disclosed by it except so far as necessary for that purpose
or for the purpose of preventing or detecting serious
crime; and
(b) that the Service does not take any action to further
the interests of any political party.
(3) The arrangements mentioned in subsection (2)(a) above shall
be such as to ensure that information in the possession of the
Service is not disclosed for use in determining whether a person
should be employed, or continue to be employed, by any person,
or in any office or capacity, except in accordance with
provisions in that behalf approved by the Secretary of State.
(4) The Director-General shall make an annual report on the work
of the Service to the prime minister and the Secretary of State
and may at any time report to either of them on any matter
relating to its work.
3. (1) No entry on or interference with property shall be
unlawful if it is authorised by a warrant issued by the Secretary
of State under this section.
(2) The Secretary of State may on an application made by the
Service issue a warrant under this section authorising the taking
of such action as is specified in the warrant in respect of any
property so specified if the Secretary of State
(a) thinks it necessary for the action to be taken in order
to obtain information which
(i) is likely to be of substantial value in assisting
the Service to discharge any of its functions; and
(ii) cannot reasonably be obtained by other means; and
(b) is satisfied that satisfactory arrangements are in
force under section 2(2)(a) above with respect to the
disclosure of information obtained by virtue of this
section and that the information obtained under the warrant
will be subject to those arrangements."
The Security Service Tribunal
The Act also provides for a tribunal, known as the Security
Service Tribunal, to deal with complaints:
"5. (1) There shall be a Tribunal for the purpose of
investigating complaints about the Service in the manner
specified in Schedule 1 to this Act...
(4) The decisions of the Tribunal and the Commissioner under that
Schedule (including decisions as to their jurisdictions) shall
not be subject to appeal or liable to be questioned in any
court."
Schedule 1 to the Act provides, inter alia :
"1. Any person may complain to the Tribunal if he is aggrieved
by anything which he believes the Service has done in relation
to him or to any property of his; and, unless the Tribunal
consider that the complaint is frivolous or vexatious, they shall
investigate it in accordance with this Schedule.
2. (1) The Tribunal shall investigate whether the complainant has
been the subject of inquiries by the Service.
(2) If the Tribunal find that the Service has made inquiries
about the complainant but that those inquiries had ceased at the
time when the complaint was made, they shall determine whether,
at the time when the inquiries were instituted, the Service had
reasonable grounds for deciding to institute inquiries about the
complainant in the discharge of its functions.
(3) If the Tribunal find that inquiries by the Service about
the complainant were continuing at the time when the complaint
was made, they shall determine whether, at that time, the Service
had reasonable grounds for deciding to continue inquiries about
the complainant in the discharge of its functions...
5. (1) Where the Tribunal determine under paragraph 2 or 3 above
that the Service did not have reasonable grounds for the decision
or belief in question, they shall
(a) give notice to the complainant that they have made a
determination in his favour under that paragraph; and
(b) make a report of their findings to the Secretary of
State and to the Commissioner.
(2) The Tribunal shall also give notice to the complainant of any
determination in his favour by the Commissioner under paragraph
4 above.
(3) Where in the case of any complaint no such determination as
is mentioned in sub-paragraph (1) or (2) above is made by the
Tribunal or the Commissioner the Tribunal shall give notice to
the complainant that no determination in his favour has been made
on his complaint.
6. (1) Where the Tribunal give a complainant notice of such a
determination as is mentioned in paragraph 5(1) above the
Tribunal may
(a) if the determination is under paragraph 2 above, order
inquiries by the Service about the complainant to be ended
and any records relating to such inquiries to be destroyed;
(b) if the determination is under that paragraph or
paragraph 3 above, direct the Secretary of State to pay to
the complainant such sum by way of compensation as may be
specified by the Tribunal.
(2) Where the Tribunal give a complainant notice of such a
determination as is mentioned in paragraph 5(2) above the
Tribunal may
(a) quash any warrant in respect of any property of the
complainant which the Commissioner has found to have been
improperly issued or renewed and which he considers should
be quashed;
(b) if the Commissioner considers that a sum should be paid
to the complainant by way of compensation, direct the
Secretary of State to pay to the complainant such sum as
the Commissioner may specify."
Pursuant to Schedule 2, the Tribunal consists of 3-5 members each
of whom must be a barrister, solicitor or advocate of not less than ten
years' standing. Members are appointed for a period of five years by
Her Majesty by royal warrant and may be removed from office by Her
Majesty on an address presented to her by both Houses of Parliament.
The Security Service Commissioner
Pursuant to Section 4 of the Act, the Prime Minister appoints as
a Commissioner a person who holds or has held high judicial office. He
has the role, inter alia, of keeping under review the exercise by the
Secretary of State of his powers under Section 3 to issue warrants. He
makes an annual report to the Prime Minister on the discharge of his
functions and the report is then laid before Parliament.
Pursuant to paragraph 7 of Schedule 1, matters may be referred
to the Commissioner by the Tribunal:
"7. (1) If in a case investigated by the Tribunal under
paragraph 2 above they consider that the Service may not be
justified in regarding all members of a particular category as
requiring investigation they shall refer that matter to the
Commissioner.
(2) If in any case investigated by the Tribunal -
(a) the Tribunal's conclusions on the matters which they
are required to investigate are such that no determination
is made by them in favour of the complainant; but
(b) it appears to the Tribunal from the allegations made by
the complainant that it is appropriate for there to be an
investigation into whether the Service has in any other
respect acted unreasonably in relation to the complainant
or his property, they shall refer that matter to the
Commissioner.
(3) The Commissioner may report any matter referred to him under
this paragraph to the Secretary of State who may take such action
in the light of the report as he thinks fit, including any action
which the Tribunal have power to take or direct under paragraph 6
above."
COMPLAINTS
The applicant believes that the United Kingdom Government has
acted in violation of Article 8 of the Convention by installing and
monitoring the electronic listening device in her house. She alleges
that it is reasonable to infer that the British Security Service keeps
her under surveillance and that such surveillance may involve the use
of electronic listening devices. She further submits that the Security
Service Tribunal procedure is unsatisfactory since it does not permit
disclosure of any information.
The applicant also submits that there is no effective remedy for
her complaints contrary to Article 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 April 1992 and registered
on 2 July 1992.
On 10 September 1992, the Commission decided to communicate the
application to the Government and to ask for written observations on
the admissibility and merits of the application.
The Government's observations were submitted on 28 January 1993
after one extension in the time-limit and the applicant's observations
in reply were submitted on 30 April 1993 after one extension in the
time-limit.
THE LAW
Article 8 (Art. 8) of the Convention
The applicant complains that a listening device has been
installed in her property and monitored by the Security Service as part
of their surveillance of her activities. She invokes Articles 8
(Art. 8) of the Convention which provides insofar as relevant:
"1. Everyone has the right to respect for his private ...
life...
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 notes that the applicant has no concrete proof to
support her allegation that the Security Service has conducted
surveillance with a view to compiling a file of personal information
about her. The Commission recalls however that "an individual
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).
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).
The Commission has held that this case-law cannot be interpreted
so broadly as to encompass every person in the United Kingdom who fears
that the Security Service may have conducted surveillance of her for
the purpose of compiling information. An applicant however cannot be
reasonably expected to prove that information concerning her 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 her private life (see e.g. Application No. 12015/86, Dec.
6.7.88, D.R. 57 p.108).
In the present case, the Commission notes that the applicant is
well-known for her involvement in controversial political causes and
that she was member of the Workers' Revolutionary Party and is now
member of the Marxist Party. She submits that the Security Service is
likely to have been involved in installing and monitoring the listening
device referring to documents disclosed by the United States
authorities which indicate that her activities were subject to the
attention of the security services there.
The Government have submitted that the documents concerned date
back a number of years and cannot be used to support the inference of
continuing security service interest. They also state in relation to
the listening device, which H. a former member of the applicant's group
had claimed responsibility for, that "H. is not and never has been
employed by, an agent of or otherwise connected with the Security
Service and has never received instructions from the Service, whether
in respect of the installation of a listening device or otherwise."
The Commission notes that the applicant points out that H. never
claimed to have installed or monitored the device and that the
Government denial does not cover the monitoring of the device. The
Commission however finds it unnecessary to determine the extent to
which, if at all, the Security Service could have been involved in the
installation or monitoring of the device. The Commission considers
that, given the nature of the applicant's continuing political
commitments and the interest shown in her by the United States agencies
in the past over a considerable period of time, there is a reasonable
likelihood that she has been subject to surveillance of some kind by
the Security Service in the United Kingdom and that, in all
probability, there is a file containing personal information concerning
the applicant.
It follows that there has been an interference with the
applicant's right to respect for her private life guaranteed under
Article 8 para. 1 (Art. 8-1) of the Convention.
The Commission must next determine whether this interference is
justified under the second paragraph of Article 8 (Art. 8) of the
Convention, namely whether it was "in accordance with the law" and if
so, whether it was necessary in a democratic society for one or more
of the reasons specified.
"in accordance with the law"
This expression has been interpreted by the Court as importing
three requirements - the interference must have some basis in domestic
law, the law in question must be accessible to the individual concerned
and its consequences for him must also be foreseeable. The Court has
further held that the requirement of foreseeability in the special
context of security checks in sectors affecting national security
cannot be the same as in many other fields. In the LEANDER case (Eur.
Court H.R., Leander judgment of 26 March 1987, Series A no. 116) it
stated:
"Thus, it cannot mean that an individual should be enabled to
foresee precisely what checks will be made in his regard by the
Swedish special police service in its efforts to protect national
security. Nevertheless, in a system applicable to citizens
generally, as under the Personnel Control Ordinance, the law has
to be sufficiently clear in its terms to give them an adequate
indication as to the circumstances in which and the conditions
on which the public authorities are empowered to resort to this
kind of secret and potentially dangerous interference with
private life (ibid., p. 32, para. 67)...
In addition, where the implementation of the law consists of
secret measures, not open to scrutiny by the individuals
concerned or by the public at large, the law itself, as opposed
to the accompanying administrative practice, must indicate the
scope of any discretion conferred on the competent authority with
sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection
against arbitrary interference (see the above-mentioned Malone
judgment, Series A no. 82, pp. 32-33, para. 68)."
The Commission finds that the interference in the present case
had a valid basis in domestic law, namely, the Security Service Act
1989 which placed the Security Service on a statutory footing for the
first time. The Commission also recalls that in the Esbester case (No.
18601/90, Dec. 2.4.93, to be published in D.R.) it found that these
provisions satisfied that requirements of accessibility and
foreseeability. Consequently the interference was "in accordance with
the law".
"necessary in a democratic society ..."
The Commission recalls that the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular, that it is proportionate to the legitimate aim pursued.
Regard must also be had in this context to the margin of appreciation
of the respondent state which in the area of assessing the requirements
of and means of pursuing interests of national security has been held
by the Court to be wide (Eur. Court H.R., Leander judgment, loc. cit.,
p. 25 paras. 58-59).
The aim pursued by the interference in the present case was the
"interests of national security". The applicant has not alleged any
other purpose. While the Court has acknowledged that States may find
it necessary to collect and store information on persons in the context
of national security, it held that it was crucial given the potential
seriousness of resulting invasions of a person's private sphere that
there exist adequate and effective guarantees against abuse (Eur. Court
H.R., Klass judgment, loc. cit., p. 23 para. 50).
The Commission recalls that the applicant submitted her
complaints to the Security Service Tribunal. It notes that the Tribunal
consists of lawyers of ten years' experience and who act in an
independent capacity. While it does not have jurisdiction to substitute
its opinion for that of the Security Service, it has a supervisory role
which includes examination of whether the Service had reasonable
grounds for making enquiries about an individual. It must also refer
to the Commissioner cases where it finds that the Service is not
justified in treating a person as a legitimate object of enquiry merely
on the ground that he or she is member of a particular group and where
it considers that the Service has acted unreasonably with respect to
a complainant. The Commissioner is a person who holds or who has held
high judicial office and he may make recommendations concerning
complaints to the Secretary of State in addition to making an annual
report to the Houses of Parliament.
The applicant has complained particularly of the unsatisfactory
nature of the Tribunal's determination which gives no explanation for
its finding in her case. The Court considered a similar problem in the
KLASS case (Eur. Court H.R. Klass judgment, loc. cit., p. 27 paras. 57-
58) but found that the State could legitimately fear that the efficacy
of surveillance systems might be jeopardised if information is divulged
to the person concerned. Similarly, as found in the LEANDER case (Eur.
Court H.R., Leander judgment, loc. cit., p. para. 66) the absence of
communication to the applicant of the information recorded may ensure
the efficacy of the procedure and cannot in itself warrant the
conclusion that the interference was not "necessary".
In conclusion, the Commission recalls its finding in the Esbester
case (loc. cit.) where it held:
"In the absence of any evidence or indication that the
system is not functioning as required by domestic law, the
Commission finds that the framework of safeguards achieves
a compromise between the requirements of defending
democratic society and the rights of the individual which
is compatible with the provisions of the Convention."
Consequently, the Commission concludes that the interference in
the present case can be regarded as necessary in a democratic society
in the interests of national security.
It follows that this complaint is manifestly ill-founded within
the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
Article 13 (Art. 13) of the Convention
The applicant complains that she has no effective remedy for her
complaints and invokes Article 13 (Art. 13) of the Convention, which
provides that:
"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 recalls however 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
her Convention rights.
It follows that this complaint must 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 by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy