Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12327/86

by Ian NIMMO

against the United Kingdom

The European Commission of Human Rights sitting in private on

11 October 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 17 April 1986

by Ian NIMMO against the United Kingdom and registered on 18 August

1986 under file No. 12327/86;

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

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

.PA:12327/86

THE FACTS

The applicant is a British citizen, born in 1957 and resident

in Welwyn. The applicant is represented by Ms Marie Staunton of the

National Council of Civil Liberties (N.C.C.L.). The facts as submitted

by the applicant may be summarised as follows.

The applicant is a financial analyst. On 6 September 1985 the

applicant attended an interview at M.E.L., a member of the Philips

Electronic and associated industries group, in connection with a

vacancy for a financial analyst. The post involved providing an

accounting service to the electronic warfare division, which dealt,

inter alia, with Government defence contracts. He was informed by the

Senior Personnel officer that he would have to go through a vetting

procedure.

On 13 September the applicant attended a second interview and

he was verbally offered the post subject to security clearance. The

applicant was not himself asked to provide any references. A few days

later, the applicant received a letter from M.E.L., dated 13 September

1985, offering him the position of financial analyst "subject to our

obtaining satisfactory references". By letter of 19 September the

applicant accepted the offer and the conditions and terms of

employment referred to in the letter.

The applicant was subsequently informed by letter of 22 October

from M.E.L. that "references have not proved satisfactory. We shall

not therefore be proceeding with an unconditional offer of employment."

The applicant knew of no reason which could have been

responsible for his failure to obtain security clearance. At no time

did any person in authority inform the applicant that information

relevant to his security status had been obtained or retained or that

it had been used in connection with his job application. Further, at

no time did any such person give him an opportunity to know the

contents of that information so that its accuracy could be checked or

so that the applicant could comment upon it. The applicant believes

that security clearance procedures are operated in connection with

applications for all jobs in private sector companies who are engaged

in defence contracts and that such procedures are carried out by

and/or at the insistence of the Security Services of the United

Kingdom.

On 6 January 1986, the N.C.C.L wrote to the Cabinet Office

(Security Division) to inquire whether the "Three Advisers" procedure

permitted an appeal by an individual such as the applicant, who had

applied for a post in a commercial company engaged in defence

contracts and had been refused on security grounds. By this

procedure, an existing employee, who is found to be unsuitable on

security grounds, may appeal either in writing or in person, to the

Minister in charge of the department to which the firm was contracted

and then to the "Three Advisers". The Cabinet Office replied by

letter of 27 February 1986 that the appeal procedure of the "Three

Advisers" only applied to existing employees of companies engaged in

classified Government work and not to applicants for employment.

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COMPLAINTS

1. The applicant complains that he has suffered the ban of a

career as a financial analyst in the electronics industry. He has not

only been unable to take the post at M.E.L. but since many large

electronics companies are involved in Government contracts, his

inability to satisfy clearance procedures considerably narrows the

field in which he can apply for jobs.

He contends that the obtaining, retention and application of

personal information about himself so as to adversely affect this job

application, without any opportunity to know of that exercise or to

comment on the accuracy of the information and the continuing

retention of such information in such circumstances, constitutes a

breach of his right to respect for his private life. The applicant

relies on Leander v. Sweden (Application No. 9248/81, Comm. Rep. of

17.5.85), X v. the United Kingdom (Application No. 8065/77, Dec.

3.5.78, D.R. 14 p. 246) and X v. Austria (Application No. 8170/78,

Dec. 4.5.79, D.R. 16 p. 145).

The applicant argues that the obtaining, retention and

application of personal information is not "in accordance with law"

and that the relevant law, if any, is not adequately accessible or

formulated. He also states that the job for which he applied could

not be said to have implications for national security and that there

were no adequate safeguards to ensure the relevant procedures operated

fairly and effectively.

The applicant invokes Article 8 of the Convention.

2. The applicant further invokes Article 13 of the Convention in

that he has no effective remedy before a national authority in respect

of the matters of which complaint is made.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 April 1986 and registered

on 18 August 1986. On 14 December 1987, the Commission decided,

pursuant to Rule 42(2)(b) of the Commission's Rules of Procedure, to

bring the application to the notice of the respondent Government and

to invite them to submit observations on the admissibility and merits.

On 2 March 1988, the respondent Government submitted its

observations and on 5 May 1988 the applicant submitted his

observations in reply.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

The respondent Government contend that it is unclear to what

extent the applicant's complaints relate to the acts of M.E.L. The

applicant complains about the obtaining, retention and application of

personal information and states inter alia that the object of his

claim is to obtain confirmation that no data concerning his activities

.PA:12327/86

are retained by M.E.L., or if there are, to know the contents of such

data so that he can check their accuracy. To the extent therefore

that the applicant complains of the acts of M.E.L., the Government

submit that the application is incompatible ratione personae with the

Convention.

The Government reserves the right to submit observations on

the merits if the application is declared admissible.

B. The applicant

The applicant in reply emphasises that M.E.L. is a government

contractor in the area of defence and that it is his belief that

security clearance and associated enquires carried out by M.E.L. are

done by, or at the insistence of the Security Services and/or the

Ministry of Defence. The violations alleged are therefore not solely

the responsibility of M.E.L. but also that of the Security Services

and/or the Ministry of Defence to the extent that they were involved

or are responsible for the matters complained of.

By reason of the circumstances of the case, the applicant has

no knowledge of the precise role played by the security services or

the Ministry of Defence, but enquiries and a security clearance on the

applicant were carried out and it must be presumed that they were

carried out by the security services. It is also reasonable to infer

that the procedures for such a clearance were agreed at a senior level

within the Ministry of Defence, the security services and M.E.L., and

that M.E.L. implemented those procedures in liaison with the Security

Services and/or the Ministry of Defence. It is to be reasonably

presumed that the Security Services used personal information about

the applicant which it had obtained, that it then made an assessment

about the applicant, and that it then gave advice to M.E.L. about the

employment or non-employment of the applicant.

A further matter of concern to the applicant is whether files

containing personal information are kept on him by the security

services. The Government's observations do not indicate whether or

not this is the case, but their retention for future use might well

impair his career prospects and his promotion opportunities.

Accordingly, the applicant would state that the object of his

application is to obtain confirmation that no data concerning his

private activities are retained by M.E.L. or the security services or,

if they are, to know the contents of such data so that he can check

their accuracy.

To the extent that the applicant's complaint relates to the

actions of the Ministry of Defence or the Security Services, such

actions engage the responsibility of the United Kingdom. To the

extent that the complaint relates to the actions of M.E.L. it is

submitted that such actions also engage the responsibility of the

United Kingdom by reason of the matters set out above.

THE LAW

The applicant complains of the obtaining, retention and

application of personal information about himself in relation to his

application for a post at M.E.L. He invokes Articles 8 and 13

(Art. 8, 13) of the Convention in relation to his complaints.

1. Insofar as the applicant appears to complain of the obtaining,

retention and application of personal information about himself by

M.E.L., the Commission recalls that under Article 25 para. 1 (Art.

25-1) of the Convention, it may only receive an application from a

person, non-governmental organisation or group of individuals where

the applicant alleges a violation by one of the Contracting Parties of

the rights and freedoms set out in the Convention and where that Party

has recognised this competence of the Commission. The Commission may

not, therefore, receive applications directed against private

individuals or private enterprises, such as M.E.L. In this respect

the Commission refers to its established case-law (see e.g. No.

172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215 and No. 9022/80, Dec.

13.7.83, D.R. 33 pp. 21, 27).

It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

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

2. The applicant complains however that the security clearance

procedure applied to him which involved the obtaining, retention and

application of personal information about him, was carried out by or

at the insistence of the security services of the United Kingdom. He

submits that this constitutes a breach of his right to respect for his

private life contrary to Article 8 (Art. 8) of the Convention and that the

resulting interference is not "in accordance with law", that the

relevant law, if any, is not adequately accessible and that there are

no adequate safeguards against abuse.

Article 8 (Art. 8) of the Convention 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 Leander case, the European

Court of Human Rights held that the storing of information concerning

a person's private life in a secret police register amounts to an

interference with the right to respect for private life as guaranteed

by Article 8 para. 1 (Art. 8-1) of the Convention (see Eur. Court

H.R., Leander judgment of 26 March 1957, Series A No. 116, p. 22,

para. 48).

The Commission has considered whether the applicant has

sufficiently proved the compilation and retention of a dossier

concerning him. The Commission recalls that in the Klass case, the

Court stated, concerning the requirement of proof of secret measures,

that:

"an individual may, under certain conditions, claim to be

the victim of a violation occasioned by the mere existence

of secret measures or of legislation permitting secret

measures, without having to allege that such measures were

.PA:12327/86

in fact applied to him. The relevant conditions are to be

determined in each case according to the Convention right

or rights alleged to have been infringed, the secret

character of the measures objected to, and the connection

between the applicant and those measures" (Eur. Court H.R.,

judgment of 6 September 1978, Series A No. 28, pp. 18-19,

para. 34).

The Commission does not consider that this passage can be

interpreted so broadly as to encompass every person in the United

Kingdom who considers that the security service may have compiled

information about him. The Commission refers in this respect to its

previous case-law in which the situation in the Klass case (loc. cit.)

where the legislation potentially affected all users of postal and

telecommunications services was distinguished from those cases in

which the category of persons likely to be affected by the measures in

question was not similarly open-ended. On the other hand, the

Commission considered that it should be possible in certain cases to

raise such a complaint without the necessity of proving the existence

of a file of personal information. To fall into the latter category

the Commission was of the opinion that applicants must be able to show

that there is, at least, a reasonable likelihood that the Security

Services have compiled and continues to retain personal information

about them (see e.g. Application No. 12015/86, Dec. 6.7.88).

In the present case, the Commission recalls that the applicant

applied for a post in a company which dealt with Government defence

contracts and in connection with which he was told he would be

subjected to a vetting procedure. On 13 September 1985, the applicant

was offered the post by M.E.L. subject to the results of security

clearance but was subsequently informed by letter of 22 October 1985

that he would not in fact be offered the post. The Commission finds

in these circumstances that there is a reasonable likelihood that the

refusal of the post was connected with compilation and retention by

the Security Services of personal information concerning the applicant.

The Commission considers that, in light of the above matters,

the applicant's complaints under Article 8 (Art. 8) of the Convention

raise complex issues of law and fact, the determination of which

should depend on an examination of the merits of the complaints.

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

before a national authority in respect of the matters of which

complaint is made.

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 notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission considers that this part of the application

also raises complex questions of law and fact, the determination of

which should depend on an examination of the merits of the application

as a whole.

For these reasons, the Commission

DECLARES INADMISSIBLE&S the applicant's complaints

directed against M.E.L.;

DECLARES ADMISSIBLE&S, without prejudging the merits,

the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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NIMMO v. the UNITED KINGDOM

NIMMO v. the UNITED KINGDOM