Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20591/92

by George FIRSOFF

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 14 January 1992

by George Firsoff against the United Kingdom and registered on

8 September 1992 under file No. 20591/92;

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 1944. He is not

represented.

The facts of the case as submitted by the applicant may be

summarised as follows.

The applicant is involved with and supports the groups which

attempt to visit Stonehenge each year on the summer solstice. He has

been involved in a number of incidents connected with attempts to gain

entry to the site and has been arrested on at least one occasion.

Between 23 March 1988 and 14 June 1990 there were several

instances of mail having arrived at his home in a damaged state. These

included, inter alia, parcels containing copies of "Festival Eye" and

confidential court papers.

On 14 June 1990, the applicant collected a damaged parcel from

the Post Office. The applicant claims that the package was partly cut

open by a series of short slits, as if a scalpel had been used.

Photographs of the damaged parcel are appended to the application.

The applicant pursued the following potential remedies :

1. On 8 July 1990 an official complaint was made to the Customer

Care Unit of the Royal Mail Parcel Force, a part of the Post Office.

By a letter dated 22 August 1990 the Customer Care Manager informed the

applicant that her impression was that the package was not strong

enough to withstand the pressures of mechanical handling. This is

disputed by the applicant. She offered to send around an enquiry

officer to inspect the original wrapping, and stated that in any case

any further enquiries conducted by the investigation branch of the Post

Office are confidential and that she did not expect to be advised of

the outcome.

2. On 28 August 1990 the applicant instituted proceedings against

the Royal Mail Parcel Force in the County Court for damages for breach

of his human rights in that the parcel which he had picked up on 14

June 1990 had been opened by the Wiltshire police with the consent of

the employees of the Post Office. In an affidavit dated 8 November

1990, the Customer Care Manager stated that in her view the parcel was

insufficiently packaged to limit movement of the contents or to

withstand mechanical handling. The applicant's case was struck out as

disclosing no reasonable cause of action on 21 January 1991. On

20 February 1991 his appeal was rejected by Judge Counsell in the

County Court on the basis of Post Office statutory immunity. An

application for leave to appeal to the Court of Appeal was filed on

16 March 1991 and a hearing before Lord Justice Leggatt took place on

23 October 1991 in the Court of Appeal. The judge concluded that the

difficulty in relation to the applicant's submission was that the

Convention is not part of the law of England. Leave to appeal was

refused.

3. On 5 December 1991 the applicant applied for a ruling from the

Interception of Communications Tribunal. This Tribunal replied on

22 February 1992 to the effect that after investigation it had been

concluded that there had been no contravention of Sections 2 to 5 of

the Interception of Communications Act 1985 in relation to a relevant

warrant or certificate.

Relevant domestic law

The Post Office Act 1969, Section 29 para. 1, states:

"... no proceedings in tort shall lie against

the Post Office in respect of any loss or damage

suffered by any person by reason of -

(a) anything done or omitted to be done in

relation to anything in the post ...".

COMPLAINTS

The applicant complains that his rights under Articles 8 and 10

of the Convention have been abused due to the interference with his

mail.

Furthermore he claims that he does not have an effective remedy

as required by Article 13 of the Convention because

- the Post Office has statutory immunity under Section 29

para. 1 of the Post Office Act 1969;

- the results of the internal Post Office investigation are

not disclosed and no compensation is offered; and

- the Interception of Communications Tribunal has no

jurisdiction to investigate interception of mail complaints

if no warrant for such interception has been issued.

THE LAW

1. The applicant complains that his mail has been interfered with

contrary to Article 8 (Art. 8) of the Convention which 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 Malone case the Court (Eur.

Court H.R., Malone judgment of 2 August 1984, Series A No. 82, p. 31,

para. 64) has held that "the existence in England and Wales of laws and

practices which permit and establish a system for effecting secret

surveillance of communications amount[s] in itself to an 'interference

... with the exercise' of the applicant's rights under Article 8

(Art. 8), apart from any measures actually taken against him."

In the sphere of alleged security service activities, the

Commission has held that it does not consider that the above case-law

can be interpreted so broadly as to encompass every person in the

United Kingdom who fears that a security service agency may have

compiled information about him. However, the Commission has also taken

the view that an applicant cannot be reasonably expected to prove that

information concerning his 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 private life (see Application

No. 12015/86, Dec. 6.7.88, to be published in D.R. and No. 12175/86

Comm. Report 9.5.89).

These considerations apply equally in the area of alleged police

surveillance. The Commission notes that in the present case the

applicant does not have positive proof that his mail has been

interfered with. He claims that his mail has been opened, though the

Post Office have given the view that the damage was due to the

packaging not being strong enough to withstand mechanical handling.

The Commission considers that there is insufficient evidence to

indicate that the applicant is a person or a member of a category of

person in respect of whom the police would consider clandestine

interception measures were necessary. Neither is there any concrete

indication that the police are in possession of information obtained

through the interception of the applicant's mail. The applicant has

failed therefore to establish a "reasonable likelihood" that his mail

has been interfered with by the police rather than merely damaged in

transit.

The Commission concludes therefore that the applicant's complaint

fails to disclose a violation of Article 8 (Art. 8) of the Convention.

It follows that his complaint is manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant also complains of interference with his mail under

Article 10 (Art. 10) of the Convention. The Commission considers

however that no separate issue arises under Article 10 (Art. 10), as

this complaint is made on the same material facts as those underlying

the claim under Article 8 (Art. 8).

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant further complains that he has no effective remedy

for his complaints as required by Article 13 (Art. 13) of the

Convention. The Commission recalls 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

his Convention rights.

It follows that this complaint must also be rejected as being

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 a.i. President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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FIRSOFF v. THE UNITED KINGDOM

FIRSOFF v. THE UNITED KINGDOM