AS TO THE ADMISSIBILITY OF

                      Application No. 13564/88

                      by P.L.

                      against Norway

        The European Commission of Human Rights sitting in private

on 8 June 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H. DANELIUS

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  J.-C. GEUS

             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 12 November 1987

by P.L. against Norway and registered on 28 January 1988 under file

No. 13564/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having regard to the observations submitted by the respondent

Government on 8 December 1989 and the observations submitted in reply

by the applicant on 23 February 1990;

        Having deliberated;

        Decides as follows:

THE FACTS

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

summarised as follows.

        The applicant is a Norwegian citizen, born in 1942.  He resides

at Trondheim, Norway.  Before the Commission the applicant is

represented by Mr.  Geir Hovland, a lawyer practising in Oslo, Norway.

A.      The particular facts of the case

        At the end of 1979 the applicant experienced problems with his

telephone and a friend of his, employed by the National Telecommunications

Company (Televerket), examined the matter and noticed that wires attached

to the applicant's telephone line at the telephone exchange centre were

leading directly to the local police station.

        Due to this the applicant assumed that his telephone was being

tapped and as he could see no legal basis upon which such telephone

tapping could be carried out he submitted, on 13 December 1979, a

complaint to the Control Committee for Security and Intelligence

Service (Kontrollutvalget for overvåkings- og sikkerhetstjenesten).

        On 14 January 1980 the applicant and his representative met with

the Control Committee and presented the case orally.  On 16 January 1980

the Control Committee informed the applicant as follows:

(Translation)

"The Control Committee has in a subsequent meeting of the 14th

of this month examined your complaint.  The Committee should

inform you as follows:

Generally speaking the Control Committee's examination of a

case as the present one includes the following:

1.  The Committee should examine whether the complainant's

telephone has actually been tapped by the Police Security

Service.

2.  If this is the case the Committee should examine

whether the tapping has the required basis in a decision of

the court and whether the tapping has taken place within the

limits of the decision, first and foremost as regards its

duration.

3.  The court's decision cannot be challenged by the Control

Committee.  But the Committee should consider whether the

surveillance of which the tapping in question is a part, falls

within the tasks of the Police Security Service according to

their instructions and ensure that it does not have its basis

in membership of a legal political organisation or a legal

political activity.

The Control Committee has examined (the applicant's) complaint

in accordance with these guidelines.  The Control Committee

cannot explain the concrete circumstances regarding its

investigation in public.  The Control Committee has not found

anything which can give rise to criticism of the Police Security

Service."

        Not satisfied with this information the applicant instituted

proceedings against the Ministry of Justice in the Oslo City Court

(Oslo Byrett) where he requested the Court to find that the telephone

tapping was illegal.  He furthermore claimed compensation amounting to a

maximum of 100,000 Norwegian crowns.  By judgment of 3 April 1984 the

Oslo City Court found in favour of the Ministry of Justice and

accordingly rejected the applicant's claim for compensation.  This

judgment was upheld by the Eidsivating Court of Appeal (Eidsivating

Lagmannsrett) on 1 February 1985.

        The applicant appealed against the latter's judgment to the

Supreme Court (Høyesterett).  In its judgment of 15 May 1987 the Supreme

Court also found in favour of the Ministry of Justice.

        In its judgment judge Hellesylt, joined by the other judges,

stated inter alia:

(Translation)

"First I note that (the applicant) has tried in vain to obtain

the court transcripts, if any, of the Trondheim City Court

where the decision concerning telephone tapping should have

been taken and he has also tried in vain to call certain other

witnesses than those who were actually heard.  As regards the

court transcripts and the witness who is employed by the

National Telecommunications Company the production of such

evidence is prohibited according to Section 204 of the Code of

Civil Procedure (tvistemålsloven) - the interest of national

security.  The hearing of five other witnesses was rejected in

accordance with Section 189 nos. 1, 2 and 3 of the Code of

Civil Procedure since their statements either did not concern

the case or concerned circumstances which were known or

obviously had no value as evidence. ...

What makes this case special as it stands before the courts is

the fact that the material which might be available in case

(the applicant) has been the subject of telephone tapping by

the Police Security Service, cannot be made known to the

courts.  Thus the courts cannot be informed whether or not

(the applicant) actually has been the subject of telephone

tapping.  In case telephone tapping did take place the

circumstances which were the cause of this are not revealed,

such as the court decision.  Nor is there information about

what material or what considerations were otherwise the basis

for the statement of the Control Committee that the case does

not give rise to criticism of the Police Security Service.

...

On the basis of the Act of 1915 a Royal Decree of 19 August 1960

sets out regulations concerning postal, telegram and telephone

control.  According to Section 1, first paragraph a decision by

a court is required for the police to effect telephone tapping.

The decision concerning telephone tapping can only be taken when

the interest of national security requires that such surveillance

is carried out.  The decision must indicate the basis for the

surveillance, its object, its purpose and its duration.

...

As regards the subsequent court control the fact is, as

already mentioned, that the material which could constitute

the basis for an independent court control is withheld from

the courts in accordance with Section 204 no. 1 of the Code of

Civil Procedure.  A real examination of the lawfulness of a

possible telephone tapping is in these circumstances not

possible.  Even if no law expressly prevents or limits the

courts' right to examine a case in connection with the control

of the activities of the Security Service, there will only

remain very little of the right to examine these matters.  I

add that the fact that the State in the interest of national

security has the right to withhold information which

constitutes the basis for a possible decision on telephone

tapping, cannot lead to the conclusion that the court must

find for a plaintiff as regards his allegations that the

decision of surveillance is illegal unless the State proves

the opposite.

The control mechanism in regard to the individual's legal

security has accordingly been set up with regard to the

special needs for secrecy, which is considered necessary for

the Security Service to be able to function according to its

purpose.  I recall in this respect: the Act of 1915 and the

supplementary regulations from 1960 have detailed and strict

requirements as regards the situations in which telephone

tapping can be carried out.  Furthermore it is necessary to

obtain a decision from the court before telephone tapping can

take place.  Here it will be considered whether the legal

requirements are fulfilled and the decision must indicate the

basis for the control, its object, its purpose and its duration.

Thirdly one can complain to the Control Committee for Security

and Intelligence Service which must in particular consider the

individual's rights.  The Committee must report every year to

the Government about its activity.  In reports to Parliament

the Government inform Parliament about the activities of the

Control Committee.

I add that similar systems are not unknown in other countries

which could naturally be compared with Norway.  I mention for

example the system which is established in the Federal Republic

of Germany and which the European Court of Human Rights found

not to be in conflict with the Convention on Human Rights.  I

refer in this respect to the case of Klass and others which

was decided on 6 September 1978.

(The applicant) could use and did use the possibility of

complaining which is available.  In a meeting with the Control

Committee he submitted together with his lawyer his arguments

as regards illegal telephone tapping.  The Control Committee

has, as appears from the Committee's answer to (the applicant),

examined the case in accordance with its mandate and the right

it has to obtain all available information.  It has submitted

a statement, not accompanied by reasons, as the Committee must

do.  After this I must conclude that (the applicant) has

received the examination of his complaint which he may claim

according to the rules in force.  The courts have no basis

upon which they can examine the case further."

B.      Domestic law and practice

        The legal basis for telephone tapping is Act No. 5 of 24 June 1915

relating to control of postal and telegraphic communications and telephone

conversations.  According to this Act the King in Council may issue

regulations inter alia relating to control of telephone conversations

when considered necessary in the interests of national security.

Section 1 second paragraph of the Act contains an exhaustive list of

the penal provisions which may in peacetime - subject to further

conditions - give a legal basis for implementing telephone tapping.

These provisions concern offences against the independence or security

of the State, against the Constitution or the Head of State, against a

public authority, against public order or peace, or offences which

cause public danger.

        In pursuance of the Act a Royal Decree of 19 August 1960 has

been enacted which contains regulations concerning postal, telegram and

telephone control.  According to Section 1 first paragraph it is for the

court to authorise telephone tapping by the police.  Such a decision

can be taken when there is reasoned suspicion that the person concerned

will commit one of the offences listed in the Act, and only when interests

of national security require that such surveillance be carried out.

The decision must indicate the basis for the surveillance, its object,

its purpose and its duration.

        According to a Royal Decree of 25 November 1977, Section 2,

the task of the Police Security Service is to prevent and counteract

all offences insofar as they may involve a threat to national security.

For this purpose the Police Security Service shall according to Section 4

obtain information about persons, groups and organisations which may be

suspected of planning or committing such offences.  However, membership

in a legal political organisation or legal political activity cannot

in itself form a basis for obtaining and recording information.

        The Control Committee for Security and Intelligence Service was

established by Royal Decree of 6 October 1972.

        The Royal Decree contained the Committee's terms of reference

and appointed its three members.  The instructions of the Committee are

now found in the Royal Decree of 22 January 1982.  The substance of the

Committee's terms of reference was the same when the Control Committee

dealt with the applicant's complaint.

        According to Section 2 of the instructions, the task of the

Control Committee is exclusively that of exercising control, especially

with regard to securing the legal safeguards for the individual.  It

shall see to it that the activities of the Police Security Service and

the Military Security Service are carried out in conformity with

statutes and instructions (Section 3).

        The Control Committee is composed of three members, of whom at

least one member shall have qualifications equivalent to those of a

Supreme Court Judge (Section 1).  Since the establishment of the

Committee the first two chairmen (in the periods of 1972-1984 and

1984-1988, respectively) were in fact Supreme Court judges, and the

present chairman (since 1988) is a former President of the Norwegian

Bar Association.  The other two members have mostly been former

parliamentarians.  One member was a professor of law at the University

of Oslo.  Since 15 November 1989 the Committee has been enlarged to

five members.

        Under Section 4 of its instructions the Control Committee is

obliged to examine any complaint submitted by an individual or

organisation.  It shall of its own motion take up any case or matter

which it deems appropriate to deal with, particularly matters which

have been the subject of public criticism.

        The Committee may according to Section 3 inspect inter alia the

Police Security Service's premises, archives, registers and technical

installations which are of significance for the control.  Such

inspections may take place at the central or the local level of the

Police Security Service, cf.  Section 6 first paragraph.  Moreover, the

Committee may demand to be provided with all information necessary to

carry out its controlling functions, and any member of the Police

Security Service may be summoned for interrogation.  In practice, the

Control Committee has regularly exercised its powers in pursuance of

these provisions.

        After having examined a case instituted by a complainant, the

Committee shall, according to Section 4 second paragraph, inform him as

to the outcome of the proceedings in the form of a conclusion which

does not state its reasons but which shall indicate that the complaint

either does or does not give reason for criticism of the Police Security

Service, as the case may be.  When there is reason for criticism, a report

concerning the matter that has given rise to the complaint shall at the

same time be submitted to the Ministry of Justice.

        The Control Committee may, according to Section 5 first

paragraph, at any time submit special reports to the Minister of Justice

as regards cases concerning the Police Security Service.

        The Committee shall, according to Section 5, every year submit a

report on its activities to the Government.  The annual reports have in

practice been published and included in the Government's reports to

Parliament, which at regular intervals form the basis for Parliament's

discussion of the activities of the Police Security Service.  The

Governmental reports to Parliament have also included reports from the

Control Committee in pursuance of Section 4 of its instructions which

have concluded that there was reason for criticism of the Police

Security Service.

        The fact that a complainant is not given the reasons for the

Control Committee's conclusion is based on an established principle

according to which the Police Security Service does not give information

as to whether a person is or has been subject to surveillance measures.

There are very few exceptions to this firmly established principle.

COMPLAINTS

        The applicant has complained that the telephone tapping, which

he alleges has taken place, is a violation of Article 8 of the Convention.

He maintains that the authorities have offered no evidence to prove

that the interference with his right to respect for private and family

life, his home and his correspondence was justified for any of the

reasons set out in Article 8 para. 2 of the Convention.

        Furthermore the applicant alleges a violation of Article 13 of

the Convention in that the Supreme Court declared that the courts had

no competence to look further into the matter than already done by the

Control Committee.  However, the Control Committee would represent no

effective remedy as guaranteed by Article 13 of the Convention as this

Committee offered no opportunity for him to know the facts or the legal

basis for its examination.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 12 November 1987 and registered

on 28 January 1988.

        The Commission decided on 2 October 1989 to bring the

application to the notice of the respondent Government and to invite

them to submit written observations on the admissibility and merits of

the application.

        The Government submitted their observations on admissibility

and merits on 8 December 1989 and the applicant's observations in reply

were submitted on 23 February 1990.

THE LAW

1.      The applicant has complained that his telephone has been

tapped by the police without any justification.  He invokes Article 8

(Art. 8) of the Convention which reads:

"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 first notes that it has never been publicly

established that the applicant's telephone was actually tapped.

However, it is not necessary for the Commission to examine this

specific question as the existence of laws and practices in Norway

which permit and establish a system for effecting secret surveillance

of his communications amounts in itself to an interference with the

exercise of the applicant's rights under Article 8 (Art. 8) of the

Convention, irrespective of any measure actually taken against him

(cf. Eur. Court H.R., Klass and others judgment of 6 September 1978,

Series A no. 28, p. 21, para. 41, and Malone judgment of 2 August

1984, Series A no. 82, p. 31, para. 64).

        The issue of the present case is accordingly whether this

interference was justified under the terms of Article 8 para. 2

(Art. 8-2), i.e.  whether it was in accordance with the law, had a

legitimate aim and was necessary in a democratic society for one or

more of the aims enumerated in that paragraph.

        As regards the question whether the interference was in

accordance with the law the applicant has submitted that he could not

be suspected of having contravened any of the relevant provisions of

the Penal Code or other laws allowing the implementation of secret

surveillance against him.  Nor were national interests at stake.  In

addition the applicant maintains that the Norwegian legislation cannot

be considered to be sufficiently clear.

       The Government contend that any measure of secret surveillance

fulfils the condition of being in accordance with the law since such

measure follows from an Act which is adequately accessible and has been

passed by Parliament.  Furthermore they contend that the law is

sufficiently clear in its terms to give citizens an adequate indication

as to the circumstances in which, and the conditions on which, the

public authorities are empowered to resort to secret surveillance.

        As regards the above issue the Commission finds the measure of

secret surveillance in Norway to be in accordance with the law within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.  The

interference results from an Act passed by Parliament, i.e.  Act No. 5

of 24 June 1915 relating to control of postal and telegraphic

communications and of telephone conversations.  Further regulations

are contained in the Royal Decree of 19 August 1960 and are readily

available to the public. In addition the Commission recalls that any

individual measure of surveillance has to comply with the strict

conditions and procedures laid down in the said legislation.

        As regards the legitimate aim the Commission is satisfied that

the aim of the above legislation is to safeguard national security and/or

to prevent disorder or crime in pursuance of Article 8 para. 2

(Art. 8-2) of the Convention and it thus remains to consider whether

the means provided for under this legislation for the achievement of

these aims remain in all respects within the bounds of what is

necessary in a democratic society.

        In this regard the applicant has pointed out that although the

decision to authorise surveillance measures must be taken by a court

this cannot be considered as being a sufficient legal safeguard.  It is

the requesting authority alone which presents the facts upon which the

decision should be taken and in such circumstances a control would be

very limited.  Furthermore the applicant submits that there is no duty

to notify the person concerned, even after the surveillance has taken

place.  Such notification would enable a person subjected to an

interference to take legal action in order to verify whether the

measures are or were in accordance with national law and Article 8

(Art. 8) of the Convention.  Such information would also give the

public the opportunity of a democratic discussion and control of the

political aspects.  In view of these defects the Norwegian system of

secret surveillances cannot, in the applicant's opinion, be accepted

as being necessary in a democratic society.

        The Government have submitted that the main point as regards a

system of surveillance adopted by the national authorities is whether

there exist adequate and effective guarantees against abuse.  They

maintain that the initial court control and the subsequent control by

the Control Committee on the basis of the applicable legislation uphold

a proper balance between the rights of the individual and those of the

State.  The Norwegian system of secret surveillance cannot therefore be

considered to go beyond what is necessary in a democratic society

within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.

        The Commission recalls that according to the case-law of the

European Court of Human Rights the existence of some legislation

granting powers of secret surveillance over mail and telecommunications

must be accepted as being necessary in a democratic society and as to

the conditions under which the system of surveillance is to be operated

the domestic legislature enjoys a certain discretion (cf. notably Eur.

Court H.R., Klass and others judgment, p. 23, paras. 48-49).

        The Commission must be satisfied, however, that, whatever

system of surveillance is adopted, there exist adequate and effective

guarantees against abuse.  In assessing this the Commission must

examine the functioning of the system of secret surveillance established

by Norway.

        In this respect the Commission notes that in Norway secret

telephone surveillance may only be ordered when this is considered to

be necessary in the interest of national security.  In time of peace it

is a further condition that the person against whom the measure is

directed is suspected of having committed an offence against the

independence or security of the State, against the Constitution or the

Head of State, against a public authority, against public order or

peace, or an offence which causes public danger (cf. Section 1 of the

Act No. 5 of 24 June 1915).

        As regards the implementation of the measure the initial

control is carried out by a court which decides whether the police

should be allowed to proceed to telephone surveillance.  The court

examines whether all requirements have been fulfilled and its decision

shall indicate the reasons, the object, the purpose and the duration of

the surveillance (cf. the Royal Decree of 19 August 1960).

        The Commission further recalls that the Government, after

consultations with Parliament, have set up an independent Control

Committee composed of three members to which complaints can be lodged,

as indeed was done by the applicant.  According to its instructions

contained in the Royal Decree of 22 January 1982, which corresponds to

the rules applicable in the present case, the Control Committee shall

inform the complainant of the result of its examination in the form of

a conclusion without any grounds, but indicating that the complaint

either gives reason, or does not give reason for criticism of the

Police Security Service.  In doing this the Control Committee has at

its disposal all available information concerning the concrete case.

Moreover, the Control Committee shall report annually to the Government

and may at any time inform the Government of specific cases.  The

Government also inform Parliament of the activities of the Control

Committee.

        When considering a system of secret telephone surveillance in

relation to the Convention, the Commission finds that a balance must be

sought between the individual's right to respect for his private life

under Article 8 para. 1 (Art. 8-1) of the Convention and the necessity

under paragraph 2 (Art. 8-2) to protect the democratic society as a

whole.  The very nature and logic of secret surveillance dictate that

not only the surveillance itself but also the accompanying review

must often be effected without the individual's knowledge.

Furthermore the Commission notes that the individual is not

informed, even once surveillance has ceased, but it does not find this

to be incompatible with Article 8 (Art. 8) of the Convention

provided that the system otherwise includes satisfactory guarantees

against abuse.

        As regards guarantees against abuse, the Commission recalls

that Norwegian law requires that the interference by the executive

authorities with an individual's rights in this regard must be

authorised in advance by a court which determines the conditions for

the measure, including its duration.  Furthermore there is a control by

the Control Committee which may request all information to be put

before it in order to consider individual complaints.  Finally the

legislation in question contains various provisions designed to reduce

the surveillance measures to an unavoidable minimum and to ensure that

the surveillance is carried out in accordance with the law.

        In these circumstances and having regard to its previous

case-law in regard to similar legislation in other countries (see,

in particular, Nos. 10439/83 etc., Dec. 10.5.85, D.R. 43 p. 34,

No. 10628/83, Dec. 14.10.85, D.R. 44 p. 175 and No. 11811/85,

Dec. 8.3.88, to be published in D.R.), the Commission finds that there

are in the Norwegian system such adequate and effective guarantees

against abuse as the European Court of Human Rights has found to be

essential in any system of this kind (Klass and others judgment, p. 23,

para. 50).  Consequently, there exists a proper balance between the

different interests involved and the Norwegian legislature was

justified to consider the interference resulting from its legislation

with the exercise of the right guaranteed by Article 8 para. 1

(Art. 8-1) of the Convention as being necessary in a democratic

society in the interest of national security and for the prevention of

disorder or crime.

        It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

2.      The applicant has also alleged a breach of Article 13

(Art. 13) of the Convention which reads:

"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.

        He maintains that the ordinary courts of law have no competence

to examine a complaint concerning secret surveillance as shown by the

judgment of the Supreme Court of 15 May 1987.  Furthermore he considers

that the Control Committee cannot be considered an effective remedy

within the meaning of Article 13 (Art. 13) of the Convention.

        The Commission finds that, in view of the particular subject-

matter of the present case, the question of "effective remedies"

constitutes an issue to be examined in relation to Article 8

(Art. 8) of the Convention in order to assess and evaluate the

functioning of the system of secret surveillance established by

Norway.  Article 13 (Art. 13) requires a remedy in domestic law only

in respect of a claim of a violation which can be regarded as

"arguable" (cf. Eur. Court H.R., Boyle and Rice judgment of 27 April

1988, Series A no. 131, p. 23, para. 52).  Having found above that the

complaint under Article 8 (Art. 8) of the Convention is manifestly

ill-founded, the Commission similarly considers that the applicant's

claim of a violation of that Article cannot be regarded as "arguable"

for the purpose of Article 13 (Art. 13) of the Convention (cf.  Eur.

Court H.R., Powell and Rayner judgment of 21 February 1990, Series A

no. 172, para. 33).  Consequently, Article 13 (Art. 13) of the

Convention does not entitle the applicant to a remedy in domestic law

in regard to his present complaint.

        It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission               President of the Commission

      (H.C. KRÜGER)                             (C.A. NØRGAARD)