Lexploria

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

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HUTCHEON v. THE UNITED KINGDOM

HUTCHEON v. THE UNITED KINGDOM

LEXI