AS TO THE ADMISSIBILITY OF

                       Application No. 18670/91

                       by E.N.

                       against Ireland

      The European Commission of Human Rights sitting in private on

1 December 1993, the following members being present:

      MM.  A. WEITZEL, President

           C.L. ROZAKIS

           F. ERMACORA

           E. BUSUTTIL

           A.S. GÖZÜBÜYÜK

      Mrs. J. LIDDY

      MM.  M.P. PELLONPÄÄ

           B. MARXER

           G.B. REFFI

           B. CONFORTI

           N. BRATZA

           I. BÉKÉS

      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 21 June 1991 by

E.N. against Ireland and registered on 14 August 1991 under file No.

18670/91;

      Having regard to:

-     the report provided for in Rule 47 of the Rules of Procedure of

      the Commission;

-     the Commission's decision of 14 October 1992 to obtain

      information from the applicant;

_     the information provided by the applicant on 27 November 1992;

-     the Commission's decision of 10 February 1993 to communicate the

      application to the respondent Government;

-     the observations submitted by the respondent Government on 28 May

      1993 and the observations in reply submitted by the applicant on

      8 September 1993;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is an Irish citizen, born in 1961.  She is a

housewife and resides in Cork.  She is represented before the

Commission by Messrs. Ernest J. Cantillon & Co., Solicitors, Cork.

      The facts of the present case, as submitted by the parties, may

be summarised as follows:

      In 1985 the applicant sustained personal injuries whilst walking

on a public footpath, for which the Corporation of Cork were

responsible.  Her claim for compensation arising out of the injuries

against Cork Corporation was heard by the High Court on 9 and 10 April

1991.  During the course of the trial it emerged that the insurance

company handling the Corporation's defence to the claim had engaged the

services of a private investigator to photograph the applicant.  These

photographs were to be used to dispute the extent of the injuries

claimed by the applicant.  The photographs were mostly of the applicant

in the street with shopping bags, then entering her house.  There was

also one or two of her inside her house closing a window.  The

photographs were taken from outside the physical boundaries of her

home.

      Before Mr. Justice Keane in the High Court the applicant's

counsel sought to object to the introduction of the photographic

evidence as being an unconstitutional invasion of the applicant's

privacy.  The judge queried the objection, as it suggested that the

local authority would be in a weaker position than an insurance company

defending a similar kind of personal injury claim between private

individuals.  Insurance companies often employ private investigators

to verify whether the complaints made by plaintiffs are in fact

consistent with their daily behaviour and the admissibility of this

evidence is not normally challenged before the courts.

      The applicant's counsel conceded that the right to privacy should

yield in certain circumstances to intrusions so as to facilitate the

proper administration of justice, but such intrusions would have to be

justified in the particular circumstances, but not in the present case

where there was no allegation against the applicant of fraud or

criminality.  This was particularly so when the intruder was a public

authority.

      However, the High Court held that the photographic evidence was

admissible because the local authority, the defendant in the case, was

entitled to illustrate its submission that the applicant, the

plaintiff, was a lot better in health than she purported to be, as

could be seen from her various activities out and about in the city and

around her home.  The court considered that the local authority was not

in a different position from anyone else resisting a civil claim.

Whilst Irish Law, through Article 40 of the Constitution, provides for

a right to privacy, albeit somewhat underdeveloped for the time being,

this was not the key issue in this case.

      The key issue was one of the admissibility of evidence.  Every

litigant who invokes the aid of the domestic courts against another

party necessarily subjects himself or herself to certain violations of

their privacy.  No objection had been made to the applicant having to

reply to questions involving intimate details about herself during the

court hearing in the case, no matter how embarrassing or unpleasant,

because the questions were relevant to the inquiry which the court had

to conduct.  To that extent the photographs were a far less intrusive

invasion of the applicant's privacy.  To exclude such evidence would

have been to do an injustice to the other party and to prevent the

court from having material before it which it should have.  The

photographs, which in the end were not all relied on by the local

authority, were held not to have significantly violated the applicant's

privacy.

      The applicant's personal injury claim against the Corporation was

nevertheless upheld and she was awarded £27,500 in damages.

      The applicant was advised that the High Court judgement was so

decisive and categorical that there was clearly no prospect of

succeeding with any further litigation, given the underdeveloped state

of the law of privacy in Ireland.  Accordingly no other legal action

was taken.

COMPLAINTS

      The applicant complains that she is the victim of violations of

Article 8 of the Convention and of Article 1 of Protocol No. 1.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 21 June 1991 and registered on

14 August 1991. On 14 October 1992 the Commission adjourned its

examination of the application in order to obtain certain information

from the applicant. Information was provided by the applicant's

representatives on 27 November 1992. On 10 February 1993 the Commission

decided to communicate the case to the respondent Government and to

invite the parties to submit their observations on its admissibility

and merits. The Government submitted their observations on 28 May 1993,

after an extension of the time limit fixed for this purpose. The

applicant replied on 8 September 1993 after a similar extension.

THE LAW

1.    The applicant complains of the covert taking of photographs of

her from outside her house by a private investigator hired by an

insurance company. The photographs were taken in order to verify

aspects of a personal injuries claim she made against the company's

client, a local authority.  As a result she claims to be the victim of

violations of Article 8 (Art. 8) of the Convention and of Article 1 of

Protocol No. 1 (P1-1).

      Article 8 (Art. 8) of the Convention guarantees the right to

respect for private and family life, correspondence and the home, and

Article 1 of Protocol No. 1 (P1-1) guarantees the right to the peaceful

enjoyment of possessions.  Both Articles envisage several exceptions

to the guarantees they offer.

2.    The Government contend that the applicant cannot claim under

Article 25 (Art. 25) of the Convention to be a "victim" of a violation

of these provisions because she has not adduced any evidence that the

interference of which complaint is made caused her any prejudice. The

photographs in question were ultimately not all relied on by the local

authority in their unsuccessful defence to her personal injury claim,

from which she received £27,500 in damages.

      The Government also submit that the applicant has not exhausted

domestic remedies because, if she had still been concerned about the

photographs in question, she could have commenced proceedings in the

High Court for damages for the alleged breach of her constitutional

right to privacy. In the event of such a claim being rejected, the

applicant could have appealed to the Supreme Court.

      The Government outline the domestic case-law in which the right

to privacy has been recognised and which demonstrates the feasibility

of such proceedings. For example, in the case of Kennedy and Others v.

Ireland and the Attorney General, [1988] ILRM p.472, unjustified

telelephone tapping was held to be in breach of the right to privacy,

a fundamental personal right flowing "from the Christian and democratic

nature of the State" and protected by Article 40.3 of the Constitution.

In that case the plaintiffs were awarded a total of £50,000 in damages.

The constitutional right to privacy has also been recognised by the

Supreme Court. For example in the case of McGee v. the Attorney

General, [1974] IR p.284, concerning the constitutionality of a law

which in effect denied a married woman access to contraception, it was

held that "Whilst the 'personal rights' [in Article 40.3 of the

Constitution of Ireland] are not described specifically, it is scarcely

to be doubted that the right to privacy is universally recognised and

accepted with possibly the rarest of exceptions".

      Although there is no reported or known decision dealing directly

with an alleged infringement of the right to privacy on account of the

taking of covert photographs, the Government consider that this is a

developing area of law which the applicant should have tested before

the domestic courts. There is no domestic case-law suggesting that such

a remedy would not provide redress for the applicant's complaint.

      Alternatively, the Government submit that there has been no

interference with the applicant's right to respect for private life or

with her property rights by a public authority, the local authority not

being responsible for the acts of its insurer. The applicant had, or

reasonably should have had, a reduced expectation of privacy when

instituting a personal injury claim, in which her health and personal

integrity would be challenged in part.

      If there has been an interference with the applicant's Convention

rights, it was in accordance with the law, the common law, and

necessary for and proportionate to the protection of the economic well-

being of the country and the rights of others, including the local

authority, with its right to defend itself and limited public resources

from possibly fraudulent or exaggerated claims. Other third party

interests to be protected include those of litigants in similar cases,

and the insurer with its policy holders, given the high cost of

insurance premiums. The taking of photographs of someone in public is

less intrusive than other methods of obtaining evidence, such as

compulsory medical examinations.

3.    The applicant refutes the Government's contentions. As regards

the "victim" question under Article 25 (Art. 25) of the Convention, she

claims that the payment of damages in her personal injury claim is

irrelevant to her privacy claim. Concerning exhaustion of domestic

remedies, she considers that, if there is a constitutional right to

privacy, this would be a tortious issue to be brought before the

Circuit Court rather than the High Court, given the low level of

damages which could be expected. However, such a remedy would stand

little prospect of success in the light of the High Court's conclusions

in her personal injury case, and would be speculative in view of the

underdeveloped state of the law of privacy. Counsel advised her against

further litigation. In the circumstances, therefore, she claims to be

absolved from pursuing such a remedy and to have fulfilled the

requirements of Article 26 (Art. 26) of the Convention.

      The applicant submits that the High Court recognised that there

had been a clear interference with her right to privacy, albeit

legitimate. The Government cannot hide behind their private insurer to

avoid their Convention liability for that interference. The applicant

considers that the interference was not sufficiently prescribed by law

because there are no specific statutory or common law provisions

regulating the activities of private investigators or clearly

protecting the right to privacy. Finally, she contends that the secret

surveillance of her by the private investigator was draconian,

unjustified and wholly disproportionate, as there were other methods

of obtaining evidence for the defence, such as rigorous medical tests.

4.    The Commission has first to consider whether the applicant may

claim under Article 25 (Art. 25) of the Convention to be a victim of

a violation of the Convention and whether she has exhausted domestic

remedies, as required by Article 26 (Art. 26) of the Convention.

       The Commission notes that the applicant failed to disclose in

her application that her personal injury claim against the local

authority was successful and that she received a considerable sum of

money in damages, namely £27,500.  Apparently because of this

successful award she could not appeal to the Supreme Court on a point

of law as to the admissibility of the contested photographs as evidence

in her civil claim. The Commission also notes that in any event the

photographs were not all relied on by the defence after the applicant's

representatives objected to them.

      The Commission further observes that the applicant did not seek

a separate remedy from the High Court for an alleged breach of a

constitutional right to privacy.  She received legal advice that such

a remedy would have had little prospect of success, given the clarity

of the High Court's indications in her case and the allegedly

underdeveloped state of the law of privacy in Ireland. It is not clear

whether the applicant received this advice during the domestic

proceedings or only later during the Commission's proceedings.

Nevertheless, it would appear to the Commission that the applicant's

principal consideration in not pursuing further litigation was the

success of her first claim.

      The Commission is of the opinion that, even assuming that the

applicant may theoretically claim to be a victim of a violation of

Article 8 (Art. 8) of the Convention or of Article 1 of Protocol No.

1 (P1-1), she has not exhausted domestic remedies, as required by

Article 26 (Art. 26) of the Convention, by reason of her failure to

pursue a separate claim for the alleged breach of her constitutional

right to privacy, if necessary up to the Supreme Court. An examination

of the case as it has been submitted does not disclose the existence

of any special circumstances which might have absolved her, according

to the generally recognised rules of international law, from exhausting

the domestic remedies at her disposal.

      The Commission notes the nature of the applicant's arguments

before the High Court, that court's recognition of the constitutional

right to privacy and the power of the Supreme Court to interpret the

Constitution in order to ensure enforceable rather than theoretical

rights. In these circumstances, the Commission does not find that

doubts as to whether a potentially effective remedy will, in the event,

prove successful constitute special circumstances absolving the

applicant from pursuing a separate privacy claim (cf. No. 9559/81, Dec.

9.5.83, D.R. 33, p. 158). The Commission considers that, in a legal

system which provides constitutional protection for fundamental rights,

it is incumbent on the aggrieved individual to test the extent of that

protection and, in a common law system, to allow the domestic courts

to develop those rights by way of interpretation.

      The Commission concludes that the applicant has not complied with

Article 26 (Art. 26) of the Convention and that her application must

be rejected under Article 27 para. 3 (Art. 27-3) 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)