The European Commission of Human Rights sitting in private on

13 May 1986, the following members being present:

              MM. C. A. NØRGAARD, President

                  J. A. FROWEIN

                  F. ERMACORA

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  S. TRECHSEL

                  B. KIERNAN

                  A. WEITZEL

                  J. C. SOYER

                  H. G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

             Mrs. G. H. THUNE

              Sir Basil HALL

              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 (Art. 25);

Having regard to the application introduced on 21 March 1985 by

W.B. against the United Kingdom and registered on 29 April

1985 under file No. 11516/85;

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

Procedure of the Commission;

Having regard to:

-       the Commission's decision of 10 July 1985 that notice should

be given to the respondent Government of the application and that they

should be invited to submit their observations in writing on its

admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules

of Procedure;

-       the respondent Government's observations of 30 October 1985

and those of the applicant's representatives in reply of 21 January

1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted on behalf of the applicant, a

British citizen born in 1930, whose home is in Inverness, by his

representative Mr. David Watt, solicitor of Inverness, may be

summarised as follows:

The applicant's wife was murdered on 31 March 1984.  The circumstances

surrounding the last hour and a half of her life are unclear.  She was

certified dead at 12.20 am, the actual time of death being estimated

to have been at midnight.  It appears that she was murdered in a block

of flats and was dragged out of the building and into the road.  She

had been hit on the head with a candle holder and her throat was cut,

severing her windpipe and major arteries.

In the previous part of the evening the applicant's wife had been met

by her subsequent assailant, D, and his uncle and aunt in a bar.  They

all went together to the flat at approximately 9.50 pm and D's uncle

and aunt left at approximately 10.40 pm, the arrangement being that

the applicant's wife and D would follow them later to another bar.

On 2 April 1984 the Procurator Fiscal at Inverness instructed two

pathologists to conduct a post mortem examination of the deceased. The

examination  was conducted in a local hospital on the same day; the

pathologists reported the cause of death as being head and neck

injuries.

On 3 April 1984 the Procurator Fiscal told D's solicitors that they

might conduct a post mortem examination.  A second post mortem

examination was accordingly conducted on 5 April 1984 and the

deceased's body was released to the applicant for burial on the same

day.

On 5 April 1984 the pathologists reported their summary opinion to the

Procurator Fiscal as to the cause of death.  They stated that the

deceased had suffered severe injuries to the head and face from a

blunt instrument, sufficient to cause fractures of the skull and

facial bones, with underlying bruising of the brain.  In addition

there were several deep lacerations of the neck which had completely

severed the windpipe and gullet.  The presence of a substantial amount

of swallowed and inhaled blood indicated that the throat had been cut

following the head injury.

In his observations of 21 January 1986 in reply to those of the

respondent Government the applicant also alleged that he was refused

access to his wife's body following the post-mortem examiantions and

that he was refused permission to take the body to his home to mourn

her during the night of 5 to 6 April 1984, prior to her burial.

When charged with the applicant's wife's murder, D decided to plead

guilty, thereby avoiding a full public trial under the Scottish

accelerated procedure.  In consequence, many of the details of what

happened to the applicant's wife were not revealed, as they would

normally have been under cross-questioning in court.

The applicant is anxious to have sight of the pathologists'

post-mortem report in order to ascertain what physically happened to

his wife on the night of her death.  The Procurator Fiscal has refused

to release a copy of this document to the applicant.

The applicant wrote to the chief pathologist at the hospital on

30 June 1984 stating that he was very concerned about the injuries

which his wife had received just before her death and that he was not

satisfied  by the reports in the newspapers.  He requested a "full

report" on his wife's death.   The pathologist forwarded the letter to

the Procurator Fiscal who informed the applicant on 6 July 1984 that

it was not possible to provide the applicant with such a report since

it was "a confidential document drawn up in connection with the

criminal proceedings involving D".

The applicant then wrote to the pathologist on 14 July 1984 asking:

"If you cannot give me the full report on the causes of my wife's

death could you please give me an outline or brief report.  Afterall I

am (the deceased's) husband. And, I am entitled to know what happened

to my wife ... "

The letter was passed to the Procurator Fiscal, who advised the

applicant to instruct a solicitor.

The applicant instructed solicitors to approach the Procurator Fiscal

on his behalf.  A meeting attended by a representative of that firm

was arranged for 9 August 1984 when certain details of the

circumstances of the applicant's wife's death were discussed.  The

representative's note of that meeting is accepted by the parties as

generally accurate and reads as follows:

"9 August 1984

Attendance with Procurator Fiscal discussing case

(The applicant's wife) was certified dead by Dr. M at 12.20 a.m. on

31 March 1984 on the roadway near the T Inn. When she actually died it

is impossible to say.  She was murded in DC flats.  She was dragged

from the flat and across the road towards the Quay.  D was stopped on

T Road.  The actual facts are not clear as it was only the accused and

the deceased in the flat.  Her throat was cut in the flat and she died

immediately.  A knife was used. A bloodstained table knife was found

- possibly more than one knife used.  Her windpipe was completely

severed and also her gullet.  She also had a broken skull - she was

hit over the head with a candle holder.  They understand that an

argument started because she wanted more drink. All the injuries were

to her head.  She was unmarked on the rest of her body.

The accused and [his] aunt and uncle were having a drink in the L Bar

and met up with [the applicant's] wife very drunk.  They left at

approximately 9.50 p.m. to go back to the flat at C Park.  They all

went to the flat, no arguments or anything wrong.  They were going

back for a party or a drink.  The aunt and uncle left the flat at

approximately 10.40 p.m. to go to the T [Inn].  D and [the applicant's

wife] were supposed to follow.  When the aunt and uncle left

everything was fine - no arguments and the flat was in perfect order.

The next anybody knows is when he was found dragging the body.

All her clothes were absolutely sodden with blood. The Procurator

Fiscal was not prepared to give them back for various reasons.

Hepatitis for one and public hygiene the other and after taking

medical advice he said they should be destroyed.  However he is not

certain if this did actually happen."

The applicant then approached the Lord Advocate at the Crown Office by

letter of 14 November 1984 in the following terms:

"Dear Sir,

Brutal Murder of [the applicant's wife] 30 March 1984, Inverness

For the last six months I have asked the Procurator Fiscal to hand

over the pathologist's report on my wife's death.  However, he refuses

to do so.  As the accused pleaded guilty there was no trial in

Inverness.  Therefore, we have no information about the circumstances

of my wife's murder and the full nature of her injuries.  The defence

ordered their own pathologist's report.  So, they know more about it

than I do.  Is this true justice?

After all, I am [her] husband and I should have all the information.

The [Procurator] Fiscal would have had to make all the information

public if there had been a trial.

All this information belongs to the people not to the Procurator

Fiscal.  I want the pathologist's report and I will not rest until I

get it ...

I believe that more than one person was involved in [the applicant's]

murder.  This is my opinion after I saw the injuries."

He was informed on 4 December 1984 by letter that the post-mortem

report was a confidential document which could not be released.  The

Lord Advocate's Office recalled that certain information had been

given to the applicant's solicitor on his behalf in relation to the

circumstances of his wife's death, and the letter continued:

"It is not the practice in any case to provide the victim's family

with a copy of the post-mortem report and I am instructed to inform

you that the Lord Advocate is not prepared to authorise

the release of a copy of the report to you.  Efforts have already

been made to provide you with information about the case in

addition to such information as is contained in the press report.

However, if there are any other outstanding matters on which you

wish information, the Procurator Fiscal will be happy to discuss

these (with your solicitors)."

On 19 November 1984 the applicant wrote to the Minister of State at

the Scottish Office in Westminster in similar terms concerning his

right of access to the report and adding:

"To think that this pathologist cut up my wife's body after the brutal

murder.  This was completely unnecessary. Also, I want to know if any

parts of my wife's body were removed.

I will have this pathologist by the balls if he does not hand over the

report.  All I want is a piece of paper. It appears that one runs up

against one wall after another when dealing with authority.

Particularly the medical profession ... "

The applicant then approached his member of Parliament, who was also

refused permission to see the post-mortem report on 18 January 1985,

when he nevertheless informed the applicant that the Lord Advocate had

confirmed that the Procurator Fiscal would make available to the

applicant, through his solicitors, "any details of your wife's death

which cause you concern".  The applicant's solicitors again contacted

the Procurator Fiscal on the applicant's behalf on 4 March 1985 when a

further meeting was held at which the Procurator Fiscal answered the

applicant's questions as put.  The following record of the meeting is

accepted as accurate by the parties:

"FILE: William Bell

DATE: 4 March 1985

Meeting with the Procurator Fiscal, Inverness

The Procurator Fiscal declined to supply any copies of the records

relating to the murder of [the applicant's wife].

The Procurator Fiscal agreed to answer any questions from the very

extensive files as follows:

1.      Did she die of brain damage due to blows to the head?

Answer: Death was from a neck wound, wind pipe was severed below the

thyroid cartilage.  The gullet was cut severing the main artery, as a

result she would have died very quickly.

2.      Were there signs of sclerosis of the liver?

Answer: No.  The liver was normal.

3.      Was she cut on the chest and arms?

Answer: There were abrasions on both the left and right elbows.  There

were lineal scratches on the lower abdomen.  There were scratches on

the Iliac Crest.

4.      Time of death?

Answer: Dr.  M pronounced her dead at 12.20 when he was called to the

scene where the body was found at the P Centre on T Road.  The time of

actual death was estimated to be about approximately midnight.

5.      Why did she have a hole in her hand - as if she grabbed an

instrument?

Answer: There was a cut on the back of the right hand, the back of the

second digit on the right hand was cut.

6.      The couple left C Park at ten minutes to 11 p.m. - after that

things went wrong?

Answer: D's uncle and aunt left the flat at 10.40 p.m. The accused and

the deceased were left in the flat on their own.  There is no

information from that point except the accused's statement.  There is

little information.  The accused admitted he was alone with the

deceased.

He stated:

'she was wanting more drink and I did not.  She started slapping and

nagging me.  I took this for so long and I hit her with the

candlestick, she kept coming at me and I went berserk.  After that I

don't know what happened'.

7.      Was D blazing drunk, did not know what happened?

Answer: D was drunk.  The second part of the question is contained in

question 6.

8.      Why did [the applicant's wife] go to that house, she was in a

girlfriend's flat, why did they not leave her in the flat?

Answer: D invited them to his girlfriend's flat after they had been

drinking at the L Bar.  (D's girlfriend was not present and is not

listed as a witness).  The reason why the deceased left her

girlfriend's flat is unknown.  She did not leave the flat at C Park

alive, she was dragged out after she was attacked.

9.      Who was involved - when did things happen?

Answer: Only D, who was alone with the deceased between 10.40 and

approximately midnight when a witness saw them in the parking area

outside the flat.  The witness stated that he saw a man who appeared

to be attempting to lift a woman who was lying in the carpark.  The

witness offered help but the man said he would manage without help.

Thereafter the accused was seen dragging the deceased along T Road.

Mr. G, a taxi driver, reported the matter to the police.

The only evidence of what happened when they were left in the flat,

and what followed on until the witnesses reported the above scenes, is

the accused's statements. There is evidence of blood in the flat, also

on the staircase which would indicate that the applicant's wife was

dead when she was dragged down the stairs from the flat.  The

deceased's head was badly smashed in fact beyond identification when

the body was examined but the cause of death was established as a

result of the neck wound."

The applicant has been informed that the Procurator Fiscal is prepared

to answer any further questions which he may wish to put concerning

his wife's death and injuries.

COMPLAINTS

The applicant contends that the denial of an opportunity to see a copy

of the pathologist's report made at the post-mortem investigation is

an infringement of his rights under Article 10 of the Convention

(Art. 10), and specifically the right to receive information.  If the

case against D had gone to trial in the normal way, this information

would have been likely to have been printed in the newspapers and have

become common knowledge.

Although the applicant was able to ask questions of the Procurator

Fiscal through his solicitors, this is not satisfactory because the

applicant does not have sufficient knowledge of what may have been in

the report and so cannot form questions without sight of it which

would answer the queries in his mind.  Given that such a report would

be common knowledge in certain circumstances, and would be made

available even if not public in other circumstances, the applicant

contends that there is a violation of Article 10 of the Convention

(Art. 10) in the present case.  The applicant's representatives

further indicate that from their contacts with the Procurator Fiscal,

it appears that there would have been no real objections to providing

a copy of the report had this been intended for some person other than

the applicant, who is well-known in Inverness, and feels himself to be

victimised because of his political views.

In his observations in reply to those of the respondent Government the

applicant also complained that he was denied access to his wife's body

following the post-mortem examinations and was not permitted to mourn

her at his home prior to her burial.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1985 and registered on

29 April 1985.

On 10 July 1985 the Commission decided, in accordance with Rule 42

para. 2(b) of its Rules of Procedure, that notice should be given to

the respondent Government of the application and that they should be

invited to submit their observations in writing on its admissibility

and merits before 31 October 1985.

The respondent Government's observations were submitted on

30 October 1985, and the applicant's representative was requested to

submit any observations in reply before 3 January 1986.  The

representative requested and was granted an extension in this

time-limit until 20 January 1986, and his observations in reply were

submitted on 21 January 1986.

SUBMISSIONS OF THE PARTIES

Submissions of the respondent Government

Normal practice

Section 102 of the Criminal Procedure (Scotland) Act 1975 provides

that when an accused person indicates that he wishes to plead guilty

and to have his case disposed of at once, he is served with an

indictment and a notice to appear before the appropriate court.  In

the present case the appropriate court was, by virtue of the operation

of paragraph 10 (2) of the Act of Ajournal (Procedures under Criminal

Justice) (Scotland) Act 1980 No. 3 (1981) S.I. 1981 No. 1766 the High

Court sitting in Edinburgh.

Under the law of Scotland, there is no general right for any person to

obtain documents prepared by or for the Crown prosecution authorities

for the purpose of the consideration or conduct of criminal

proceedings.  Where a death occurs in suspicious circumstances a

post-mortem report is obtained by the Procurator Fiscal, who is the

local representative of the Lord Advocate who has overall

responsibility for the prosecution of crime in Scotland.  The purpose

of such a report is for use in connection with criminal proceedings

exclusively.

An accused person is entitled to seek documents which are to be

produced in evidence in criminal proceedings against him by virtue of

Section 83 of the Criminal Procedure (Scotland) Act 1975.  Subject to

that provision documents listed as productions are otherwise

confidential unless or until revealed in evidence in open court.  They

may be seen by the presiding judge, and, in his discretion, by members

of the jury.  It is settled law (Mcglashan v. HM Advocate (1948)

Arkley 500) that such documents prepared at the instance of the Crown

and intended for use only at a criminal trial are the property of the

Crown and remain so even after any proceedings for which they were

prepared.

A party to civil proceedings in Scotland is entitled to ask the Court

to grant a diligence to obtain delivery of documents relevant to the

civil proceedings.  The Court of Session has consistently recognised

the right of the Lord Advocate to object to the production of

documents in the hands of Procurators Fiscal prepared or received for

the purpose of the investigation and prosecution of crime, if the

Lord Advocate considers that their production would not be in the

public interest.  The Court retains the right to overrule such an

objection in an exceptional case (Dowgray v. Gilmour (1907) SC 715 at

720).

This case law is supplemented by the current statutory provisions in

relation to the production of documents in civil proceedings,

contained in the Administration of Justice (Scotland) Act 1972,

Section 1 of which grants power to the Court of Session and the

Sheriff Court to make appropriate orders in respect of any documents

which may be relevant for civil proceedings.  There is no reported

case this century of any decision by a court in Scotland to order

production of documents in the hands of the criminal prosecuting

authorities when objection to such production has been made by the

Lord Advocate, but none of the reported cases has dealt specifically

with the production of a post-mortem report.  The Lord Advocate may,

if he considers it to be in the public interest, authorise a

disclosure of documents held by the Crown Prosecution Service, or not

object to their disclosure when it is requested in civil proceedings.

It should be added that the next of kin may arrange himself for a

further post-mortem examination to be carried out after a body has

been released for burial, following a post-mortem conducted on the

instructions of the Procurator Fiscal.

Admissibility and Merits

1.      Article 25 para. 1 (Art. 25-1)

The respondent Government contend first that the applicant cannot

claim to be a victim within the meaning of Article 25 of the

Convention (Art. 25), since he has been provided with the information

contained in the post-mortem report about the cause of his wife's

death, the nature and extent of her injuries and what physically

happened to her on the night of her death.  In addition at no time has

the Procurator Fiscal refused to answer questions on these matters put

on the applicant's behalf through his solicitors, and he remains

willing to deal with any further questions.

Article 8 (Art. 8)

In view of the Court's judgment in the Belgian linguistic case (Eur.

Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A

no. 6 at paras. 6 and 7) the object of this provision is essentially

that of protecting the individual against arbitrary interference by

the public authorities in one's family life.  No issue of private

life, home or correspondence arises in the present case, and the

respondent Government contend first that the refusal of the Procurator

Fiscal and the Lord Advocate to permit the applicant to see the

post-mortem report on his wife cannot be an interference with his

family life as the post-mortem report as such does not form part of

that family life. It is information prepared for the Procurator

Fiscal, and any complaint concerning non-disclosure of such a document

therefore falls to be considered exclusively under Article 10

(Art. 10) and not under Article 8 (Art. 8).

In addition, the applicant has in fact received the information which

he seeks about the cause of his wife's death, the injuries sustained

by her and what physically happened to her on the night of her death

and the refusal of the relevant authorities to permit the applicant to

see or receive a copy of the post-mortem report itself does not, in

the submission of the Government, constitute an interference with his

rights under Article 8 (Art. 8).  A post- mortem report contains detailed

medical information about the full examination of the deceased's body.

It may include information about the deceased of which the deceased's

spouse was unaware, and which may have been deliberately concealed by

the deceased from his or her spouse during the subsistence of the

marriage.  The right to respect for family life under Article 8

(Art. 8) does not extend to confer an entitlement to receive a report

containing such detailed medical information while the family unit

remains in existence during the life of the spouse, and hence cannot

confer such an entitlement to receive a post-mortem report containing

such information in the hands of the Crown authorities after the death

of the spouse.

The respondent Government therefore contend that the application is

incompatible ratione materiae with the provisions of the Convention,

or alternatively manifestly ill-founded.

Article 10 (Art. 10)

The respondent Government submit that there has been no interference

with any right conferred by this provision, since the applicant has in

fact received the information which he sought regarding the cause of

his wife's death, the injuries sustained by her and what physically

happened to her on the night of her death.  In his request for a sight

or a copy of the post-mortem report, the applicant has never stated

exactly why he is seeking to physically see or hold the report.

With regard to the particular questions which he has raised concerning

his wife's injuries, their extent, the circumstances of her death, and

the applicant's speculation that more than one person was involved in

his wife's murder, detailed answers have been provided to him at

meetings with his representatives on 9 August 1984 and 4 March 1985.

The Procurator Fiscal has not declined to answer any question asked of

him on the applicant's behalf, and the applicant's contention that,

without access to the post-mortem report, he is unable to form

questions that would answer queries in his mind is spurious and

unsupportable.

The applicant, in the statement of the object of his application,

states that he wishes to be allowed sight of the post- mortem report

in order "to discover what is known of the circumstances of the murder

and what happened to his wife on the night of her death".  This

information has already been provided by the Procurator Fiscal, who is

willing to deal with any further request for information as the

applicant has already been informed.

Nor would the whole contents of the post-mortem report have been made

public had the applicant's wife's murderer pleaded not guilty.  Only

the information which was relevant to support the charge

of murder and was necessary to prove that charge would have been

required to be made public had there been a trial.  The post-mortem

report is a technical medical document containing information as to

the nature and extent of injuries and what physically happened to the

deceased's body.  It would normally be referred to by witnesses, but

not narrated in full.  It would not be made available to the press in

the event of a trial.  In all these circumstances the respondent

Government contend that there is no interference with the applicant's

right to receive information protected by Article 10 of the

Convention (Art. 10).

If the Commission nevertheless considers that there has been an

interference with paragraph 1 of Article 10 of the Convention

(Art. 10-1) the respondent Government contend that such an

interference satisfies the four criteria set out by the Court in the

Sunday Times judgment of 26 April 1979, Series A no. 30), namely that

the interference:

a.      Was prescribed by law;

b.      Had an aim or aims that is or are legitimate under Article 10

para. 2 (Art. 10-2);

c.      Was necessary in a democratic society for that aim or those

aims; and

d.      Was proportionate to that aim or those aims.

In view of the relevant statutory provisions, and their interpretation

by a consistent line of case law, the respondent Government contend

that the interference complained of is prescribed by law and that the

law in question satisfies the requirements of accessibility and

foreseeability imposed by Article 10 (Art. 10).

Any such interference would also pursue a justifiable aim, namely the

prevention of disorder or crime, the protection of the reputation of

rights of others, and the prevention of the disclosure of information

received in confidence.  The prevention of disorder or crime clearly

includes preventing citizens from taking the law into their own hands,

and the withholding of confidential material concerning the

prosecution in criminal proceedings is justifiable on that basis.  It

is relevant in this respect that some of the applicant's comments in

the correspondence submitted to the Commission are of an intemperate

nature.  Furthermore, the respondent Government contend that the

non-disclosure of documents received or prepared by the Crown

prosecuting authorities in connection with the investigation of

prosecution of crime also justifies withholding the post-mortem report

"for the prevention of disorder or crime". Furthermore, if the Crown

prosecuting authorities are to be able to obtain the services of

expert forensic pathologists in cases of murder and other suspicious

deaths, it is necessary that such experts should be able to rely on

their reports being used only for their intended purposes for the

investigation or prosecution of crime, and not being disclosed other

than in connection with those proceedings and otherwise as provided

for by law.  The post-mortem reports are obtained not only for use in

criminal proceedings, but also for the investigation of crime, and

they must therefore contain all relevant information for this purpose

as well as for the purpose of prosecution.

Pathologists should not be inhibited from stating all such information

and their opinions thereon fully and frankly; there might be concern

if their reports were to be disclosed other than on this specific

basis.

In addition, the protection of the reputation or rights of others

includes the protection of the reputation of the deceased as to his

life and past, and of the deceased's associates and the reputation and

rights of the pathologist who prepared the report, for example against

violence or civil suit or harassment.

The Government also submit that such interference was necessary within

the meaning of Article 10 para. 2 (Art. 10-2), in that the national

authorities are entitled, in the exercise of their margin of

discretion, to take the view that there is a pressing social need to

withhold from disclosure documents such as the post-mortem report in

the hands of the Crown prosecuting authorities for the purpose of the

consideration and commencement of criminal proceedings.  Moreover the

aim of this policy is applied in a proportionate manner since the rule

is not a rigid one, and exceptions can be made, for example, to permit

civil actions or an insurance claim to be brought.  No such special

claim arises in this case, and the applicant's allegation that the

refusal to provide him with the post-mortem report is due to his

political activities is categorically denied.

Submissions of the applicant

Domestic law and practice

The applicant submits that, as is illustrated by his application and

the observations of the respondent Government, where the Lord Advocate

opposes the disclosure of documents prepared for the prosecution in

the hands of the prosecution authorities no effective remedy exists in

the law of Scotland to redress his refusal.

Admissibility and merits

Article 25 para. 1 (Art. 25-1)

The applicant may, in view of the facts, and the absence of a remedy

against the matters about which he complains, claim to be a victim of

a breach of Articles 8, 10 and 13 of the Convention (Art. 8,

art. 10, art. 13).

Articles 8 and 10 (Art. 8, art. 10)

The scope of the protection afforded by Article 8 of the Convention

(Art. 8) is broader than that stated by the respondent Government, as

the safeguards go far beyond the measurable features of life, to

include the range of intimacies and understandings peculiar to human

relationships.  Matters of emotional and sentimental value cannot

therefore be excluded.  The notion of family life includes in certain

circumstances extra-marital relationships, and both mothers and

fathers have certain rights to the unborn, as also spouses have rights

in respect of the deceased.  It follows that, as part of the incidence

of natural love and affection, the applicant should be entitled to see

the post-mortem report even if it contained nothing of deemed benefit

to him.  Alternatively, if the report contains matters deemed benefit,

the applicant should also be entitled to see it.

Whatever the position under Article 8 (Art. 8) with regard to

obtaining information concerning persons who are alive, the present

position is entirely different, not least because further medical

reports on living persons may always be obtained.  In the present case

the applicant is the beneficiary of the deceased's estate.

It is noted that the Procurator Fiscal remains willing to deal with

any further questions concerning the post-mortem report or the

circumstances of the death of the applicant's wife and that the

applicant is free to ask whatever further questions he wishes.  This

was confirmed by the Crown Office letter of 3 October 1985.  The

applicant cannot know precisely what is meant by the word "deal".  If

the Procurator Fiscal will answer any questions put on behalf of the

applicant then there would seem to be no justification in refusing him

sight of the report.  The alternative would be for the applicant to

indulge in the proceedings not unlike a guessing game.  If however the

report actually contains  matters about which the respondents are not

prepared to answer questions, then it is essential to know whether

such information includes material as referred to by the Government as

justifying the withholding of information, such as information of

which the deceased's spouse was unaware, and which his spouse during

the subsistence of their marriage did not wish him to know.  As

matters stand, the respondent Government merely indicate that, if

there were such material, it might justify the withholding of

information. Such an approach does not provide basis for a

justification of withholding information in a general way, unless such

material were present.

Even if the report does contain material that the respondent

Government would prefer to remain confidential to themselves, there

may be other details which the applicant has a perfect right to know.

Sensitive parts could be deleted from an edited copy of the report, if

there is any genuine ground of confidentiality at issue.

The applicant, as is clear from the correspondence and other material

which he has submitted, has certain particular concerns with regard to

circumstances of his wife's death.  There is public concern that

certain material aspects of the tragedy have not been revealed in

full.  The applicant believes that more than one person may have been

involved in the murder.  It appears that his wife may have had money

removed from her, prior to her death.  The deceased appears to have

been unnecessarily cut up by the pathologist and concern is expressed

that parts of her body may have been removed. The applicant was not

allowed to see his wife's body until three days after her death, and

then in rushed circumstances.  Serious doubts therefore exist as to

many of the circumstances of the applicant's wife's death.  The

applicant was refused access to his wife's body after the post-mortem,

and was not permitted to have her body taken to his house for one

night prior to her burial.

The reasoning of the respondent Government contains an essential

fallacy, in that they equate a "query", or more accurately a basis of

"concern" with having a factual basis sufficiently sound to enable

questions to be framed which include and exclude all deductable facts.

The post-mortem report may refer to matters incapable of anticipation

by the applicant.  The respondent Government's observations fail to

distinguish in this respect between deduction by the applicant and

guesswork.  Where relevant basic facts are provided it is usually

possible to make reasonable deductions by asking questions themselves

deduced from those facts.  Alternatively, as may be the present

position because the applicant has an incomplete basis for his

questions, he is in effect left to guess.  The fact that the

post-mortem report is "a technical medical document containing

information as to the nature and extent of injuries of what physically

happened to the deceased body" as stated by the respondent Government

does not make it inappropriate to the applicant's concern.

In addition it is completely unfounded to allege that there is any

danger that the applicant might take matters into his own hands. The

reference to the applicant's "intemperate language" in his

correspondence is exaggerated.  To suggest that the prosecution

authorities were concerned or alarmed is spurious.

Furthermore, it is quite spurious to assert that pathologists expect

their investigations and conclusions in a post-mortem report to be

confidential since such reports become a production in murder cases,

and it is usual that they be spoken to in evidence by two

pathologists.  Often pathologists are questioned in detail by the

Crown and are subject to extensive cross-examination by the defence,

and it is notable that, with the exception of evidence of complainers

in rape cases, members of the public and the press are freely admitted

to prosecutions in Scotland.

It is not known whether in this case, the post-mortem report contained

some details which actually might have affected the reputation of the

deceased or others.  Nevertheless, it is difficult to envisage how any

such matter could be accorded such a high degree of confidentiality to

be kept from the spouse.  It is even harder to envisage such matters

that should be kept secret indefinitely from a surviving spouse.  In

these circumstances it is submitted that the interference with the

applicant's rights was not necessary.  There is no valid reason why

the applicant could not have seen the report himself and every reason

why he should.  It is established from the judgment in the Handyside

case (Eur. Court H.R., Handyside judgment of 7 December 1976, Series

A no. 24), that the domestic margin of appreciation goes hand in hand

with the European supervision, which concerns both the aim of the

measure challenged and its necessity.  As such it covers not only the

basic legislation but also the specific decision applying it.  The

arguments of the respondent Government do not provide the basis upon

which such an assessment of the specific decision in this case can be

evaluated.

It is also to be noted from the judgment in the Klass case (Eur. Court

H.R., Klass judgment of 6 September 1978 Series A Volume 28 para. 21)

that an exception to the rights guaranteed by the Convention is to be

narrowly interpreted.  While therefore the national authorities are

allowed a discretion in assessing the extent to which the exigencies

of a situation require the rights of a subject under the Convention to

be restricted, it does not follow that the Commission's examination is

limited to ascertaining whether the State has exercised its

discretion: "reasonably, carefully and in good faith.  Even a

contracting State so acting remains subject to the Court's control as

regards the compatibility of its conduct with the engagement it has

undertaken under the Convention." (Sunday Times Case, supra,

para. 35).

The applicant contends that the criteria applied by the Commission in

X. and Church of Scientology v. Sweden (Application No. 7805/77,

D.R. 16, p. 68) must be applied to examine the restrictions based upon

the applicant's access to the post-mortem report.  The Commission

there held:

"The 'necessity' test cannot be applied in absolute terms, but

requires the assessment of various factors: such factors include the

nature of the right involved, the degree of interference, ie whether

it was proportionate for the legitimate aim pursued, the nature of the

public interest which requires protection in the circumstances of the

case."

The application of these principles in the present case reveals that

the rights protected under Article 8 (Art. 8) are both intimate and

precious while the information sought under Article 10 (Art. 10)

is of high personal value to the applicant at least.  The degree of

interference on the part of the prosecuting authorities is excessive

and perhaps pointless, having regard to their willingness to answer

questions. Whilst it is conceded that there are circumstances where a

high public interest may exist in relation to certain documents

obtained by a prosecuting authority, the present request is not

amongst them, or has not been shown to be by the respondent

Government.

Part of the notion of a democratic society referred to in Articles 8

and 10 of the Convention (Art. 8, art. 10) is the concept of the rule

of law. In view of the respondent Government's arguments, no effective

legal remedy exists against the refusal of the Lord Advocate to

release prosecution documents.  It is submitted that such a remedy is

required if the full sense of the rule of law is to be achieved,

particularly in view of the Court's judgment in the Klass case (supra,

para. 25) where the Court held:

"The rule of law implies inter alia that an interference by the

executive authorities with an individual's rights should be subject to

an effective control which should normally be assured by the

judiciary, at least in the last resort, judicial control offering the

best guarantees of independence, impartiality and a proper procedure."

If the prosecuting authorities were justified in refusing the

applicant either access to his deceased wife's corpse for three days,

or a copy of the post-mortem report, which is denied, it is submitted

that they had a duty in the terms of Article 10 (Art. 10) to advise the

applicant that he could have a private post-mortem arranged.  This

obligation arises by analogy with the Klass case where the authorities

were found to have a duty to notify the persons under surveillance of

that fact as soon as that became practicable.

Article 13 (Art. 13)

The respondent Government are also in breach of this provision, since

they concede that no effective remedy exists in the law of Scotland to

redress the Lord Advocate's refusal to authorise a disclosure of

documents prepared for the prosecution which are in the hands of the

prosecuting authorities.  The applicant relies in this

respect on the reports of the Commission in the case of Silver and

others (Comm. Report of 11.10.80, paras. 443-452) and in the Sporrong

and Lönnroth case (Comm. Report of 8.10.80, paras. 154-165).

Article 18 (Art. 18)

The respondent Government appear to be applying a policy decision

relating to all prosecution documents and materials to the present

application for the sight of the post-mortem report.  They seek to

apply restrictions and to preserve their policy, although they have no

substantial objection to disclosure in the applicant's individual

case.  In reality, they have no objection to this applicant becoming

appraised of the whole circumstances of his deceased wife's death as

is demonstrated by their willingness and continued willingness to

answer his questions.  Nevertheless they arbitrarily refuse him access

to the post-mortem report.

The applicant therefore contends that the application is admissible

and discloses breaches of Articles 8, 10, 13 and 18 of the Convention

(Art. 8, art. 10, art. 13, art. 18).

THE LAW

1.      The applicant complains that the refusal of the Scottish

authorities to provide him with a copy of the pathologist's

post-mortem report of his murdered wife is a breach of Article 10 of

the Convention (Art. 10), which provides:

"1.  Everyone has the right to freedom of expression.  This right

shall include freedom to hold opinions and to receive and impart

information and ideas without interference by public authority and

regardless of frontiers.  This Article (Art. 10) shall not prevent

States from requiring the licensing of broadcasting, television or

cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties

and responsibilities, may be subject to such formalities, conditions,

restrictions or penalties as are prescribed by law and are necessary

in a democratic society, in the interests of national security,

territorial integrity or public safety, for the prevention of disorder

or crime, for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the disclosure

of information received in confidence, or for maintaining the

authority and impartiality of the judiciary."

The post-mortem report is a technical medical document which is the

property of the Crown and is not normally released to the public.  The

applicant nevertheless wishes to receive a copy of the report and

contends that Article 10 (Art. 10) confers upon him a right to require

the production to him of such a document by the Government.

In this regard the Commission recalls the previous occasions upon

which it has considered what sorts of information are covered by the

freedom to receive information referred to in Article 10 (Art. 10).

In its decision on the admissibility of Dec. No. 8383/78, X. v. the

Federal Republic of Germany, (D.R. 17 p. 227) the Commission did not

exclude the possibility that:

" ... the right to receive information may under certain circumstances

include a right of access by the interested person to documents which,

although not generally accessible, are of particular importance to his

own position ... "

The Commission concluded however that there was no question of a

denial of such specific information in that case.

In its decision on the admissibility of Dec. No. 8878/80, X. v.

Ireland (7.12.81 unpublished), the Commission recognised that:

"Although ...  Article 10 (Art. 10) is primarily intended to guarantee

access to general sources of information, it cannot be excluded that

in certain circumstances, it includes a right of access to documents

which are not generally accessible. ...  The Commission is not of the

opinion, however, that Article 10 (Art. 10) imposes an obligation on

state authorities to publish such information, as opposed to

facilitating access to them."

However, the Commission is not required to decide the extent of the

right conferred upon the applicant by Article 10 para. 1 (Art. 10-1)

as regards the post-mortem report, since it is clear that he has in

fact substantially received the information which he claims is denied

to him.  Certain details of the circumstances of his wife's death were

provided to his solicitors by the Procurator Fiscal at a meeting on

9 August 1984 following a request by them for a copy of the full report.

In response to a further request to the Lord Advocate at the Crown

Office on behalf of the applicant for a copy of the report, the Lord

Advocate confirmed that it was not the practice in any case to provide

the victim's family with a copy of the post-mortem report.  However,

in addition to the information already made available to the

applicant, the Lord Advocate confirmed that the Procurator Fiscal

would be happy to discuss any other outstanding matters on which

information was sought with the applicant's solicitors.  Further

information was provided at another meeting between the applicant's

representative and the Procurator Fiscal on 4 March 1985 when the

applicant's solicitors put certain further specific questions to the

Procurator Fiscal concerning the injuries suffered by the applicant's

wife, details of the circumstances of her death and the behaviour of

the other individuals involved prior to the murder.  The Procurator

Fiscal provided full written answers to all these questions, although

he maintained his refusal of access to the post-mortem report itself.

Moreover the Procurator Fiscal has confirmed that the applicant may

seek answers to any further queries he might have concerning the

circumstances of his wife's death in the same way if any question

remains outstanding.

In these circumstances the Commission considers it appears that the

applicant has received the information he seeks.  The Convention

cannot in these circumstances be interpreted to guarantee a

right to receive information in a particular form, and the applicant

has no right to receive a copy of the post-mortem report itself since

he has in any event received, or could apparently receive if he

formulated a suitable request, the substantive information sought by

means of the written answers to his questions.  In this respect the

applicant has not indicated, what, if any, further information he

requires and has not received.

It follows therefore that there has been no interference with the

applicant's access to information and that his complaints in this

respect are manifestly ill-founded within the meaning of Article 27

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

2.      The applicant also complains that the refusal of the

authorities to allow him access to the post-mortem report on his wife

is an unjustified interference with his right to respect for his

family life which is protected by Article 8 of the Convention

(Art. 8), 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 respondent Government contend that no issue arises under this

provision, or that any interference was justified.

The Commission considers that Article 8 of the Convention (Art. 8)

does not provide an unlimited right for members of family to have

access to official reports or other court documents which are prepared

by the public authorities as a result of the non-natural death of a

family member.

In the present case the applicant has been informed of the substantive

contents of the post-mortem report.  His representatives have been

able to question the authorities as to its contents and the

opportunity to put further questions is open to the applicant.

The domestic authorities have thereby shown a flexible response to the

particular circumstances of the case and have revealed the substance

of the report to the applicant.  The applicant would wish to see the

report itself, but in view of the purpose for which it was prepared

this has been refused.  The purpose in question illustrates the scope

of the report and the reasons for its preparation.  It is not in the

nature of a private medical opinion, prepared on a patient in the

context of medical treatment or diagnosis, but is intended to serve

the purpose of the investigation of crime as well as providing

evidence for the public prosecution of an offender.

In these circumstances the Commission finds that the fact that the

actual report has not been shown to the applicant shows no lack of

respect for his family life and it follows that this aspect of the

applicant's complaints is manifestly ill-founded within the meaning of

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

3.      The applicant also complains that he was denied a remedy as

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

Article 13 (Art. 13) 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."

However, the Commission recalls that it has held that the remedy

referred to in Article 13 (Art. 13) is only required where the

applicant can make an arguable claim to be the victim of a violation

of the Convention.  In the present case the Commission has found that

there was no interference with the applicant's right to respect for

his family life or his right to receive information because he has

been informed in substance of the contents of the post-mortem report

and the opportunity to ask further questions about it remains open to

him.

In these circumstances the applicant cannot make an arguable claim to

be a victim of a violation of the Convention and that Article 13

(Art. 13) has no application in the present case.

It follows that this aspect of the applicant's complaint is manifestly

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

Convention (Art. 27-2).

4.      Finally the applicant complained in his observations filed on

21 January 1986 that he was denied access to his wife's body after her

death and was not permitted to mourn her at his home prior to her

burial.  However the Commission is prevented from considering these

complaints by the terms of Article 26 of the Convention (Art. 26)

which provides as follows:

"The Commission may only deal with the matter after all domestic

remedies have been exhausted, according to the generally recognised

rules of international law, and within a period of six months from the

date on which the final decision was taken."

The present complaint was introduced on 21 January 1986.  In the

absence of any remedy for the matter complained of, the six month

period referred to in Article 26 (Art. 26) runs from the date of the

event complained of.  However the event in question occurred in

April 1984, that is more than six months before the applicant lodged a

complaint about this issue with the Commission.

It follows that this aspect of his complaints has been submitted out

of time and is inadmissible within the meaning of Article 27 para. 3

of the Convention (Art. 27-3).

For these reasons, the Commission,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission              President of the Commission

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