AS TO THE ADMISSIBILITY OF

                      Application No. 21482/93

                      by Campbell CHRISTIE

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

27 June 1994, the following members being present:

           MM.   C.A. NØRGAARD, President

                 S. TRECHSEL

                 A. WEITZEL

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mr.   F. MARTINEZ

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 M.P. PELLONPÄÄ

                 G.B. REFFI

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

           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 24 February 1993

by Campbell Christie against the United Kingdom and registered on

9 March 1993 under file No. 21482/93;

      Having regard to :

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

      Commission;

-     the observations submitted by the respondent Government on

      25 November 1993 and the observations in reply submitted by the

      applicant on 10 February 1994 ;

      Having deliberated;

      Decides as follows:

THE FACTS

      The applicant is a British  citizen, born in 1937, and resident

in Falkirk. He is represented before the Commission by Mr. John Wadham

of the organisation "Liberty".

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

be summarised as follows:

A.    Particular circumstances of the case

      Since April 1986, the applicant has been the General Secretary

of the Scottish Trades Union Congress, a confederation of trade unions.

In that capacity, the applicant has been in regular contact with trade

unions in Eastern Europe and elsewhere and from time to time he has

received telexes from trade unions in Eastern Europe.

      In or about July 1991, it came to the attention of the applicant,

in the context of a Granada television documentary "Defending the

Realm", that telexes addressed to himself from East European trade

unions were being routinely intercepted by GCHQ (Government

Communications Headquarters) which is the United Kingdom's central

intelligence-gathering centre. Information from these telexes had been

collated and reported to other government agencies, including the

Security Service. The evidence for these allegations was provided

anonymously by a former GCHQ employee, who also stated that at a

particular address in London all telexes passing in and out of London

were intercepted and fed into a programme known as "the Dictionary",

which picked out key names and words. He stated that "the Dictionary"

was monitored by carefully vetted British Telecom employees to give the

impression that GCHQ was not carrying out the interception and that

warrants were not obtained for this activity.

      In a letter dated 10 March 1992 to the applicant's

representatives, the documentary presenter explained that at a time

between 1984 and 1987 -most probably in 1985- one of the clerical staff

at GCHQ had made a fuss when he found himself filing a report in which

the applicant appeared. The clerk, who was in the same civil service

union as the applicant, made an objection to the head of section and

the incident was well-known within GCHQ.

      On 19 June 1992, the applicant made an application to the

Interception of Communications Tribunal complaining of the interception

of his telexes. He also made an application to the Security Services

Tribunal concerning Security Service involvement in the collection and

retention of information derived from the telexes.

      By letter dated 16 September 1992, the Interception of

Communications Tribunal informed the applicant that his complaint had

been investigated and that the Tribunal was satisfied that there had

been no contravention of Sections 2 to 5 of the Interception of

Communications Act 1985 with respect to a relevant warrant or

certificate.

      By letter dated 4 December 1992, the Security Services Tribunal

informed the applicant that his complaint had been investigated and no

determination in his favour made.

B.   Relevant domestic law and practice

i.    Interception of communications

      Interception of Communications Act 1985

      Following the decision of the Court in the Malone case (Eur.

Court H.R., Malone judgment of 2 August 1984, Series A no. 82), the

Interception of Communications Act 1985 was enacted. This came into

force on 10 April 1986.

      Pursuant to section 1 of the 1985 Act, a person who intentionally

intercepts a communication in the course of its transmission by post

or by means of a public telecommunications system is guilty of an

offence. A person convicted of this offence is liable on summary

conviction to a fine not exceeding £5000 and, on conviction on

indictment, to imprisonment for up to two years and/or a fine.

      A number of exceptions are made, the relevant one in this case

relating to authorised interceptions:

      "1.  (2) a person shall not be guilty of a criminal offence

           under this section if-

           (a) the communication is intercepted in obedience to a

           warrant issued by the Secretary of State under section 2

           below ..."

      Warrants for interception

      The Secretary of State may issue a warrant of interception

subject to the provisions of the Act. These provide, inter alia, that

he shall not issue a warrant unless he considers that the warrant is

necessary:

      "(a) in the interests of national security;

       (b) for the purpose of detecting serious crime; or

       (c) for the purpose of safeguarding the economic well-being of

       the United Kingdom." (section 2(2)).

      Warrants in respect of (c) are not considered necessary unless

the information to be acquired relates to the acts or intentions of

persons outside the British Islands (section 2(4)).

      Warrants must be issued under the hand of the Secretary of State

or a permitted official of high rank with the written authorisation of

the Secretary of State. If issued under the hand of the Secretary of

State, the warrant is valid for two months; if by another official, it

is valid for two days. Only the Secretary of State may renew a warrant.

If the Secretary of State considers that a warrant is no longer

necessary for the purposes set out in section 2 (2), he is under a duty

to cancel it (section 4).

      Use and retention of information

      Section 6 provides that the Secretary of State is under a duty

to ensure that the dissemination and retention of information obtained

by interception under a warrant are strictly controlled. This includes

the requirement that arrangements are made to ensure that material is

disclosed only to the extent that it is necessary for the permitted

purposes and that material is destroyed as soon as its retention is no

longer necessary for the permitted purposes (section 6 (2)-(3)).

      The Tribunal

      Section 7 of the Act provides for a tribunal to investigate

complaints from any person who believes that communications sent by or

to him have been intercepted. Its jurisdiction, so far as material, is

limited to investigating whether there is or has been a relevant

warrant and, where there is or has been, whether there has been any

contravention of sections 2-5 of the 1985 Act in relation to that

warrant.

      The Tribunal applies the principles applicable  by a court on an

application for judicial review. If it finds there has been a

contravention of the provisions of the Act, it shall give notice of

that finding to the applicant, make a report to the Prime Minister and

to the Commissioner appointed under the Act and, where it thinks fit,

make an order quashing the relevant warrant, directing the destruction

of the material intercepted and/or direct the Secretary of State to pay

compensation. In other cases, it must give notice to the applicant

stating that there has been no contravention of sections 2-5 of the

Act.

      The Tribunal consists of 5 members, each of whom must be a

qualified lawyer of not less than 10 years standing. They hold office

for a five year period and may be re-appointed. Its decisions are not

subject to appeal.

      Since its inception, the Tribunal has not found that any

contravention of the provisions of sections 2-5 of the Act has

occurred. During 1992, it received 45 complaints.

      The Commissioner

      Section 8 provides that a Commissioner be appointed by the Prime

Minister. He is required to be a person who holds, or who has held,

high judicial office. The present Commissioner is Sir Thomas Bingham,

Master of the Rolls.

      The Commissioner's functions include the following

      - to keep under review the carrying out by the Secretary of State

      the functions conferred on him by sections 2-5;

      - to keep under review the adequacy of the arrangement under

      section 6 for safeguarding intercepted material and destroying

      it where its retention is no longer necessary;

      - to report to the Prime Minister if there appears to have been

      a contravention of sections 2-5 which has not been reported by

      the Tribunal or if the arrangements under section 6 are

      inadequate;

      - to make an annual report to the Prime Minister on the exercise

      of the Commissioner's functions. This report must be laid before

      the Houses of Parliament. The Prime Minister has a power to

      exclude any matter from the report if publication would be

      prejudicial to national security, to the prevention or detection

      of serious crime or to the well-being of the United Kingdom. The

      report must state if any matter has been so excluded.

      There have been seven annual reports published by the

Commissioner to date. In these reports the Commissioner explains his

exercise of his functions and the results of his review of the

procedure for obtaining warrants and the adequacy of the safeguards in

practice.

      The Commissioner's reports

      The 1986 Report

      In the 1986 report, the Commissioner (then Lord Justice Lloyd,

a member of the Court of Appeal) noted that while he was not concerned

with the investigation of unlawful interception, the Secretary of State

had said during the passage of the Bill through the House of Commons

that he assumed that if the Commissioner came across a case of unlawful

interception he would report it.

      In the report, the Commissioner also explained his approach to

the term "national security":

      "27. National security is not defined in the Act, or in

      Article 8 of the European Convention of Human Rights and

      Fundamental Freedoms where the same term is used. It has usually

      been taken to include threats to the security of the Nation by

      terrorism, espionage and major subversive activities, but it is

      not confined to these three matters. Nor, of course, is

      subversion defined. But I have taken as the test the well known

      language of Lord Harris of Greenwich in February 1975 namely,

      activities `which threaten the safety or well-being of the State

      and which are intended to undermine or overthrow Parliamentary

      democracy by political, industrial or violent means' ..."

      He continued that, given the sensitivity of the area of

subversion which was less clear cut than terrorism or espionage, he had

taken care to review all warrants issued on those grounds. He found no

indication that the warrants issued had not satisfied the requisite

test.

      In relation to the ground of "economic well-being" the

Commissioner noted that it also was undefined, but considered that

there was an important negative qualification in that no warrant can

be issued unless the information sought related to the acts or

intentions of those outside the British Islands. His review revealed

no case where a warrant had not been so directed.

      The Commissioner explained that he had adopted the practice of

selecting warrants at random to examine save in the case of those

pursuing the purpose of counter-subversion.

      The Commissioner concluded that his overall impression was of the

high value of the intelligence obtained from interception and also of

the care taken by all concerned to observe not only the letter but also

the spirit of the Act.

      The 1987 Report

      In this report the Commissioner indicated that he applied the

test of "really needed" to the requirement under the Act of whether a

warrant was "necessary". He found that all the warrants which he

reviewed fulfilled this criterion. He recounted a number of incidents

however where problems had occurred.

      The 1988 Report

      The Commissioner made further comments on the term "national

security":

      "10. Now national security, as I pointed out in my first report,

      is not defined in the Act... It is narrower than the term "public

      interest" which is found in section 4 of the Official Secrets Act

      1920, now repealed. But it is obviously wider than the three

      heads of  counter-terrorism, counter-espionage and

      counter-subversion. To take a simple example, nothing could be

      more directly related to national security than defence. So if

      an interception is judged necessary for the defence of the realm

      against a potential external aggressor, then clearly it is

      necessary in the interests of national security. Further than

      that I do not think it would be wise or indeed possible to go in

      defining what is covered by national security. Each case must be

      judged on its merits. That is what is done by the Secretary of

      State; and this is what I do when fulfilling my functions as

      Commissioner."

      The 1989 Report

      In this report, the Commissioner  referred to that fact that the

Security Service Act 1989 had come into force and an independent

Commissioner been appointed. He noted the similarity in the provisions

of the two Acts and that they overlapped in some areas. He concluded

that it was desirable that the two Commissioners applied the principles

of judicial review in broadly the same way in exercising their

functions and stated that they would consult together for this purpose.

      The 1990 Report

      The Commissioner referred to the evidence that interceptions were

assisting in the prevention of crime and terrorism: over 40% of

interceptions at the request of the police resulted in arrests and, in

respect of HM Customs, the equivalent figure was just under 50%.

      The 1991 Report

      In this report, the former Commissioner at the end of his term

of office reviewed the previous six years:

           "... 3.  The Commissioner has two main functions.  His

           principal function is to keep under review the system

           whereby, subject to certain limited exceptions set out in

           section 1 of the Act, interception cannot lawfully take

           place without a warrant issued by the Secretary of State.

           The grounds on which the Secretary of State can issue a

           warrant, if he considers it necessary to do so, are set out

           in section 2 of the Act, namely (i) national security, (ii)

           the prevention or detection of serious crime, (iii)

           safeguarding the economic well-being of the United Kingdom.

           During my six years in office I have not come across a

           single warrant which could not be justified on one or other

           of these grounds.

           4.  The great majority of all warrants issued by the Home

           Secretary are, and have always been, concerned with the

           prevention or detection of serious crime, especially the

           importation and distribution of dangerous drugs.  Success

           in this field has been marked.  Thus half the record

           quantity of cocaine and heroin seized by HM Customs in 1991

           owed something to interception intelligence.

           5.  The pattern of warrants issued on the ground of

           national security has changed over the last six years.  In

           particular the threat of subversion has steadily declined.

           For example, in 1985 there were a number of warrants issued

           against individual subversives who were regarded as being

           a major threat to Parliamentary democracy.  Last year there

           were only two.  Now there are none.  But just as the threat

           of subversion has declined, so the threat of terrorism has

           increased.  Over the same period the number of warrants

           issued on the ground of counter-terrorism has, not

           surprisingly, risen.

           6.  There have never been more than a few warrants issued

           on the ground of safeguarding the economic well-being of

           the United Kingdom.  There is no question of this ground

           being used for the purpose of industrial espionage within

           the United Kingdom, as it is sometimes thought, or being

           otherwise abused.  The Act requires that the information

           sought must relate to the acts or intentions of persons

           outside the United Kingdom.  This is how it works in

           practice.

           7.  I am confident that the Secretaries of State, who sign

           warrants, take great care to satisfy themselves that the

           warrants are necessary for the purposes stated in the Act.

           If they are not so satisfied they decline to issue, or

           renew, the warrant as the case may be.  But this is not

           all.  As part of my duties, I make regular visits to HM

           Customs, the police, and the security and intelligence

           agencies in England, Scotland and Northern Ireland.  From

           the start I have been impressed by the determination of the

           agencies not only to obey the letter of the law, but also

           the spirit.  I have given illustrations of this from time

           to time in previous reports.  Where mistakes have been

           made, they have been acknowledged.  On doubtful points they

           have asked for guidance.  I am satisfied that the system is

           working as intended by Parliament, and is working well.

           8.  What I have said about the agencies applies equally to

           those operating the postal and public telecommunications

           services.  Unless they have a warrant in their hands, or

           are satisfied that it has been signed, they do not carry

           out the interception.  This is one of the main safeguards

           built into the Act.

           9.  My second function is, as I see it, to reassure members

           of the public that interception of communications is

           serving an important public objective, and that it is not

           being abused by the Government, the police or anybody else.

           This function is not spelt out in the Act.  But I regard it

           as implicit in my appointment.

           10. The task of reassuring the public would have been

           easier if I could publish everything which has appeared in

           the unpublished appendices to my report.  I could then give

           chapter and verse.  But for obvious reasons I cannot do

           that.  I can only attempt to reassure in general terms.

           11. In this connection, I may be allowed to mention certain

           comments which have appeared in the press, and on the radio

           or television during the last year.  On 14 June 1991, in a

           radio interview, John McWilliam, MP for Blaydon, a former

           telephone engineer, said that police officers down to the

           rank of superintendent could in certain circumstances issue

           warrants.  This is simply not so.

           12.  On the same day, the Guardian carried an article which

           estimated that the number of interceptions had reached a

           record level of 35,000 lines.  This was based on an alleged

           increase in the number of specialist engineers employed by

           British Telecom to 70.  Since the Home Secretary and the

           Secretary of state for Scotland had together only issued

           539 warrants during 1990, the implication was that there

           were thousands of unauthorised interceptions.  Mr.

           McWilliam was quoted as saying:

                 "My suspicion is that a lot of perfectly innocent

                 citizens are being subject to surveillance for no

                 particularly good reason."

           It cannot be said too strongly that there is no basis

           whatever for this speculation.

           13. On 15 July a programme was shown by Granada in the

           World in Action series.  I cannot comment in this part of

           my report on the individual allegations in the programme;

           but there is not the slightest truth in the suggestion,

           repeated in the Guardian on 16 July, that the law is being

           "bent" by GCHQ, and that British businessmen are being

           "ambushed" as a matter of routine."

      The 1992 Report

      The current Commissioner, Sir Thomas Bingham, the Master of the

Rolls, referred to the safeguards in operation against abuse of power.

He was impressed by the scrupulous adherence to the statutory

provisions of those involved in the procedures. He commented on the

stories which occasionally circulated in the press with regard to the

interceptions by GCHQ and MI5 and MI6, stating that in his experience

they were without exception false and gave an entirely misleading

impression to the public both of the extent of official interception

and of the targets against which interception is directed.

      The Commissioner detailed a number of contraventions and errors

which had occurred during the year. These included incidents where

mistakes were made in relation to the telephone number to be

intercepted and where there were delays in acting on the cancellation

of warrants being acted on. On discovery of such errors, the

intercepted material was destroyed. The Commissioner stated that steps

were being taken to remedy deficiencies in the procedures which had

allowed errors to occur and hoped that he would find fewer such errors

in the following year.

      Number of warrants issued and in force

      Each of the Commissioner's reports includes the statistics for

the number of warrants in force and issued by the Home Secretary and

the Secretary of State for Scotland each year.

      In relation to interceptions of telecommunications over the year

1992, authorised by warrant of the Home Secretary, there were 265

warrants in force on 31 December 1992, while 756 had been issued during

the year.

ii.   The Security Service

      The Security Service Act 1989

      The Security Service Act 1989 places the Security Service on a

statutory basis under the authority of the Secretary of State. The

function of the Service is "the protection of national security and,

in particular, its protection against threats from espionage, terrorism

and sabotage, from the activities of agents of foreign powers and from

actions intended to overthrow or undermine parliamentary democracy by

political, industrial or violent means" (section 1(2)). It also has the

function to safeguard the economic well-being of the United Kingdom

against threats posed by the actions or intentions of persons outside

the British Islands (section 1(3)).

      The operations of the Service are under the control of a

Director-General appointed by the Secretary of State. He has the

responsibility for the efficiency of the Service. He has the duty of

ensuring that there are arrangements for securing that no information

is obtained by the Service except so far as necessary for the proper

discharge of its functions, that no information is disclosed by it

except so far as necessary for that purpose or for the purpose of

preventing or detecting serious crime, and that the Service does not

take any action to further the interests of any political party

(sections 2(1)-(2)). The Director-General must also make an annual

report on the work of the Service to the Prime Minister and the

Secretary of State and may at any time report to either of them on any

matter relating to its work.

      The Security Service Tribunal

      The Act also provides for a tribunal, known as the Security

Service Tribunal, to deal with complaints. Its decisions are not

subject to appeal.

      Schedule 1 to the Act provides, inter alia, that any person may

complain to the Tribunal if he is aggrieved by anything which he

believes the Service has done in relation to him or to any property of

his.

      Under paragraph 2 of the Schedule 1, the Tribunal has the role

of investigating whether a complainant has been the subject of

inquiries by the Service and, if so, whether the Service had reasonable

grounds for deciding to institute inquiries about the complainant in

the discharge of its functions and, if the inquiries are continuing,

whether the Service had reasonable grounds for deciding to continue

inquiries about the complainant in the discharge of its functions.

Where the Tribunal determines that the Service did not have reasonable

grounds for the decision or belief in question, it is provided that

they shall give notice to the complainant that they have made a

determination in his favour under that paragraph and make a report of

their findings to the Secretary of State and to the Commissioner. Where

in the case of any complaint no such determination is made, the

Tribunal shall give notice to the complainant that no determination in

his favour has been made on his complaint.

      Where a determination has been made in favour of a complainant,

the Tribunal may order inquiries by the Service about the complainant

to be ended and any records relating to such inquiries to be destroyed.

They may also direct the Secretary of State to pay to the complainant

such sum by way of compensation as they may specify. In addition, the

Tribunal may quash any warrant in respect of any property of the

complainant which the Commissioner has found to have been improperly

issued or renewed and which he considers should be quashed. If the

Commissioner considers that a sum should be paid to the complainant by

way of compensation, the Tribunal may direct the Secretary of State to

pay to the complainant such sum as the Commissioner may specify.

      Pursuant to Schedule 2, the Tribunal consists of three to five

members each of whom must be a barrister, solicitor or advocate of not

less than ten years' standing. Members are appointed for a period of

five years by Her Majesty by Royal Warrant and may be removed from

office by Her Majesty on an address presented to her by both Houses of

Parliament.

      Pursuant to para. 9(1) of Schedule 1, the Tribunal is limited as

follows:

      "9. (1) No complaint shall be entertained under this Schedule if

      and so far as it relates to anything done before the date on

      which this Schedule comes into force."

      The Security Service Commissioner

      Pursuant to Section 4 of the Act, the Prime Minister appoints as

a Commissioner a person who holds or has held high judicial office. He

has the role, inter alia, of keeping under review the exercise by the

Secretary of State of his powers under section 3 to issue warrants in

respect of entry on and interference with property.

      Pursuant to paragraph 7 of Schedule 1, matters may be referred

to the Commissioner by the Tribunal:

      "7. (1) If in a case investigated by the Tribunal under

      paragraph 2 above they consider that the Service may not be

      justified in regarding all members of a particular category as

      requiring investigation they shall refer that matter to the

      Commissioner.

      (2) If in any case investigated by the Tribunal -

           (a) the Tribunal's conclusions on the matters which they

           are required to investigate are such that no determination

           is made by them in favour of the complainant; but

           (b) it appears to the Tribunal from the allegations made by

           the complainant that it is appropriate for there to be an

           investigation into whether the Service has in any other

           respect acted unreasonably in relation to the complainant

           or his property,

      they shall refer that matter to the Commissioner.

      (3) The Commissioner may report any matter referred to him under

      this paragraph to the Secretary of State who may take such action

      in the light of the report as he thinks fit, including any action

      which the Tribunal have power to take or direct under paragraph 6

      above."

      The Commissioner makes an annual report to the Prime Minister on

the discharge of his functions and the report is then laid before

Parliament.

COMPLAINTS

      The applicant complains that his correspondence from East

European trade unions has been intercepted by GCHQ, or that it is

reasonably likely that such interception has taken place, and

information from it collated and reported to other government agencies,

including the Security Service. He submits that this constitutes an

interference with his right to respect for his correspondence contrary

to Article 8 of the Convention. He further submits that this

interference cannot be justified under the second paragraph for the

following reasons:

      The interference was and is not "in accordance with the law"

since the interception of communications and functions of the Security

Service are still not sufficiently regulated by legislation. In

particular:

      - the definition of the type of activity likely to be susceptible

      to interception is not precise;

      - the circumstances in which information gathered is destroyed

      and in which use may be made of the information are not defined;

      - the function of the Security Service provided for in the 1989

      Act, namely "the protection of national security", is not

      adequately defined and includes protection against threats from

      actions intended to undermine parliamentary democracy by

      political means;

      - the function of the Security Service to safeguard the economic

           well-being of the United Kingdom is undefined;

      - the safeguards provided by the two Tribunals are grossly

      inadequate.

      The interference was and is not "necessary" since there is no

pressing social need for the measures in this case and there are no

adequate and effective safeguards against abuse in existence. In

particular:

      1. Concerning the Interception of Communications Tribunal

      i. the Tribunal has no jurisdiction to investigate

      interceptions which ceased before 10 April 1986;

      ii. the  Tribunal has no power to consider the correctness of the

      Secretary of State's decision to issue a warrant, only whether

      the decision was one which no reasonable Secretary of State could

      have reached; it also has no jurisdiction to investigate cases

      where no warrant has been issued;

      iii. the Tribunal is prevented from giving reasons for a decision

      which is not in the applicant's favour and its decisions are not

      subject to any appeal to a court;

      iv. the Tribunal has never upheld any of the complaints made to

      it;

      v. Parliamentarians, as such, play no role in the process;

      2. Concerning the Security Service Tribunal:

      i. the Tribunal has no competence to consider complaints where

      the inquiries ceased before 18 December 1989;

      ii. the Tribunal has no power to consider the correctness of the

      Service's decision that inquiries were justified in the discharge

      of its functions, only whether it had reasonable grounds for so

      deciding;

      iii. if inquiries are made by the Service on the basis that a

      person is a member of a particular group, the Tribunal's

      examination is limited to whether the Service had reasonable

      grounds for believing the person to be a member of the group. The

      question of whether it is justifiable to regard all members of

      a group as requiring investigation can be referred by the

      Tribunal to the Security Service Commissioner, but he has only

      the ability to make recommendations to the Secretary of State;

      iv. the same points as are made concerning the Interception of

      Communications Tribunal in  1. iii.-v. above.

      The applicant also complains that he has no effective remedy for

his complaints as required by Article 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 24 February 1993 and registered

on 9 March 1993.

      On 6 July 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

      The Government's observations were submitted on 25 November 1993,

after two extensions in the time-limit fixed for this purpose, and the

applicant's observations in reply were  submitted on 10 February 1994.

THE LAW

1.    The applicant complains that his correspondence has been

interfered with contrary to Article 8 (Art. 8) of the Convention, the

relevant part of which provides as follows:

      "1.  Everyone has the right to respect for ... 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 applicant alleges that his telexes from East European trade

unions were intercepted by GCHQ.

      The Government neither confirm nor deny that such interception

took place. They are, however, willing for the applicant's complaints

to be dealt with on the basis that there is a reasonable likelihood

that the communications which referred to the applicant may have been

intercepted by GCHQ and come to the attention of the Security Service.

      The Commission therefore considers that an interference with the

applicant's correspondence under Article 8 para. 1 (Art. 8-1) may be

assumed in this case. It has accordingly examined whether this

interference is justified under the second paragraph, namely, whether

it was "in accordance with the law" and if so, whether it was necessary

in a democratic society for one or more of the reasons specified.

"In accordance with the law"

      This expression has been interpreted by the Court, firstly, as

requiring that the interference must have some basis in domestic law

and secondly, as referring to the quality of the law (see eg.

Eur. Court H.R., Kruslin and Huvig judgments  of 24 April 1990,

Series A no. 176-A, p. 20, paras. 26-27, and no. 176-B, p. 52,

paras. 54-55).

      The Commission notes that the provisions governing interception

of communications and the functions of the Security Service are

contained in statute, the Interception of Communications Act 1985 and

the Security Service Act 1989 respectively. It finds accordingly that

the interference had sufficient basis in domestic law.

      The criterion of "in accordance with the law" however extends

further to the quality of the law, requiring it to be compatible with

the rule of law in providing a measure of protection against arbitrary

interferences. In this context, it should be accessible to the person

concerned, who must moreover be able to foresee its consequences for

him (see e.g. Eur. Court H.R., the Sunday Times judgment of

26 April 1979, Series A no. 30, p. 31, para. 49, and the Malone

judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).

      The criterion of "accessibility" does not raise any problem in

the instant case, the relevant provisions being set out in the

above-mentioned statutes.

      As regards "foreseeability", the Court has emphasised that the

law must be sufficiently clear in its terms to give citizens an

adequate indication as to the circumstances in which and the conditions

on which public authorities are empowered to interfere. A law which

conferred a discretion would not be inconsistent with this requirement

provided that the scope of the discretion and the manner of its

exercise were indicated with sufficient clarity  to give the individual

adequate protection against arbitrary interference (see e.g. Eur. Court

H.R., Olsson judgment of 24 March 1988, Series A no. 130, p.30,

para. 61).

      The applicant submits that the terms "national security" and

"economic well-being" are not even partially defined in the 1985 Act.

The latter term is also unelaborated in the 1989 Act. To the extent

that "national security" is partially defined in the 1989 Act, it is

still unacceptably vague. He submits that, while a certain flexibility

is acceptable in the context of terms subject to judicial

interpretation, this is not the case where the interpretation and

application are done secretly by the Government without public

adversarial argument on the issues involved. Further the applicant

alleges that the circumstances in which information obtained from

interceptions should be destroyed, and the use which may be made of it,

are inadequately defined.

      The Government contend that the terms of the relevant legislative

provisions sufficiently indicate the type of activity likely to be

susceptible to interception of communications, and that safeguards are

imposed which regulate the retention and use of information obtained

from interceptions.

      The Commission notes that the case-law of the Commission and

Court establishes that the requirement of foreseeability in the special

context of sectors affecting national security cannot be the same as

in many other fields. In the Leander case the Court stated:

      "Thus, it cannot mean that an individual should be enabled to

      foresee precisely what checks will be made in his regard by the

      Swedish special police service in its efforts to protect national

      security.  Nevertheless, in a system applicable to citizens

      generally, as under the Personnel Control Ordinance, the law has

      to be sufficiently clear in its terms to give them an adequate

      indication as to the circumstances in which and the conditions

      on which the public authorities are empowered to resort to this

      kind of secret and potentially dangerous interference with

      private life ...

      In addition, where the implementation of the law consists of

      secret measures, not open to scrutiny by the individuals

      concerned or by the public at large, the law itself, as opposed

      to the accompanying administrative practice, must indicate the

      scope of any discretion conferred on the competent authority with

      sufficient clarity, having regard to the legitimate aim of the

      measure in question, to give the individual adequate protection

      against arbitrary interference (see the above-mentioned Malone

      judgment, Series A no. 82, pp. 32-33, para. 68)." (Eur. Court

      H.R., Leander judgment of 26 March 1987, Series A no. 116, p. 23,

      para. 51).

      The Commission recalls that it has considered the compatibility

with the requirements of foreseeability of the partial definition of

"interests of national security" in the 1989 Act (see section 1(2) in

Relevant Domestic Law and Practice) in two previous cases,  Esbester

v. the United Kingdom (No. 18601/91, Dec. 2.4.93 to be published in

D.R.) and Hewitt and Harman v. the United Kingdom (No. 20317/92,

Dec. 1.9.93 to be published in D.R.). It considered that the principles

referred to above did not necessarily require a comprehensive

definition of the notion of "the interests of national security",

noting that many laws, which by their subject-matter require to be

flexible, are inevitably couched in terms which are to a greater or

lesser extent vague and whose interpretation and application are

questions of practice. It held that, given the express limitations on

the exercise of the Security Service's functions and the supervision

of a Tribunal and Commissioner, the law was formulated with sufficient

precision.

      In the present case, the Commission notes that the term "national

security" in the 1985 Act and that of "economic well-being" in the 1985

and 1989 Acts are not expressly defined. It appears however that the

Commissioner appointed under the 1985 Act has in his public annual

reports given elaboration on how the provision is to be interpreted,

with reference in the context of "national security" to the definition

given by Lord Harris of Greenwich (the 1986 report p. 8 above). He has

also given further consideration as to its ambit in the 1988 report

(p. 9 above). As regards the criterion of economic well-being, this is

subject to the express limitation that it may only justify interception

where the information, which it is considered necessary to obtain, is

information relating to the acts or intentions of persons outside the

British Islands. A similar limitation applies in the context of the

1989 Act.

      While, as the applicant points out, the provisions of the 1985

and 1989 Acts are not subject to the influence of the adversarial input

which forms part of the judicial process of interpretation, the

Commission does not consider that the concept of foreseeability

requires that questions of interpretation and practice must be decided

in a judicial forum. It is compatible with the requirements of

foreseeability that terms which are on their face general and unlimited

are explained by administrative or executive statements and

instructions, since it is the provision of sufficiently precise

guidance to enable individuals to regulate their conduct, rather that

the source of that guidance, which is of relevance (cf. Eur. Court

H.R., Silver judgment of 25 March 1983, Series A no. 61, pp. 33-34,

paras. 88-89).

      As regards the use and retention of information obtained by

interception, the Commission notes that section 6 of the 1985 Act

imposes an obligation on the Secretary of State to provide arrangements

to ensure that material is disclosed only to the extent necessary to

fulfil the purposes allowed and that it must be destroyed once its

retention ceases to be necessary for those purposes. The Commissioner,

a senior member of the judiciary, exercises the function of reviewing

the adequacy of those arrangements and reports annually on his

findings.

      In light of the above, the Commission considers that the scope

and manner of exercise of the powers to intercept communications and

make use of the information obtained are indicated with the requisite

degree of certainty to satisfy the minimum requirements referred to

above.

      The Commission thus concludes that any interference in the

present case was "in accordance with the law".

Legitimate aim

      It is not contested that the aims pursued by the interference in

the present case were the "interests of national security" and/or the

"economic well-being of the country", which are legitimate aims

provided for in the second paragraph of Article 8 (Art. 8) of the

Convention.

"Necessary in a democratic society ..."

      The Commission recalls that the notion of necessity implies that

the interference corresponds to a pressing social need and, in

particular, that it is proportionate to the legitimate aim pursued.

Regard must also be had in this context to the margin of appreciation

of the respondent state which in the area of assessing the requirements

of national security and choosing the means of achieving its protection

has been held by the Court to be wide (Leander judgment loc. cit.

p. 25, paras. 58-59).

      The Court has acknowledged the necessity for States to collect

and store information on persons but has emphasised that it is however

crucial, given the potential seriousness of resulting invasions of a

person's private sphere, that there exist adequate and effective

guarantees against abuse (Eur. Court H.R., Klass judgment of

6 September 1979, Series A no. 28, p. 23, para. 50).

      The Government have pointed to the framework of supervision set

up under the 1985 and 1989 Acts.

      The applicant contends that the protection offered is inadequate

and ineffective. He alleges a number of defects.

      Insofar as the applicant complains that the Tribunal has no

jurisdiction to investigate interceptions which ceased before

10 April 1986, the Commission notes that the substance of the present

complaint relates effectively to the adequacy of existing safeguards

under the 1985 Act and not to pre-existing law. In any event, all

outstanding warrants were reconsidered under the 1985 Act and fresh

warrants issued if appropriate. Information gathered prior to the

1985 Act which might still be retained by the Security Service would

be subject to the limitations set out in the 1989 Act, namely, it could

be retained only insofar as it was necessary for the proper discharge

of its functions and this retention could be reviewed by the Security

Service Commissioner.

      The applicant criticises the limited nature of the examination

of complaints carried out by the Tribunal which has no power to

consider the correctness of the Secretary of State's decision to issue

a warrant, only whether the decision was one which no reasonable

Secretary of State could have reached. The Commission considered

similar complaints in the context of the scope of review of the

Security Service Tribunal in the Esbester case (loc. cit.), but found

that the supervisory role which it exercised in combination with the

Commissioner was sufficient. In the context of the 1985 Act, the

Commission notes that the Tribunal is similarly constituted by lawyers

of ten years' experience who act in an independent capacity. While it

could not reconsider the merits of a decision to issue a warrant, it

does have the competence, applying the judicial review standard, to

investigate whether there has been a contravention of sections 2-5 of

the 1985 Act, which would include reviewing whether the Secretary of

State issued a warrant for a proper purpose. Further the Commissioner

is under an obligation to review warrants under section 8 (1)(a) of the

1985 Act. It appears from his 1987 report that in reviewing the issue

of warrants he applies a rigorous test of whether they were "really

needed" for the purpose.

      While the Tribunal and Commissioner under the 1985 Act have no

express jurisdiction to investigate cases where no warrant has been

issued, the Commission recalls that interceptions without a warrant are

criminal offences and accordingly a matter for the police. If, however,

the Tribunal or Commissioner came across an instance of an unauthorised

interception, it is apparent from the Secretary of State's statement

before Parliament that it would be expected that they would report it.

      Insofar as the applicant complains that the Tribunals under the

1985 and 1989 Acts are prevented from giving reasons for a decision

which is not in the applicant's favour, this limitation has already

been considered by the Commission in the context of the 1989 Act in the

Esbester case where it found, on the basis of established case-law,

that States may legitimately fear that the efficacy of a system might

be jeopardised by the provision of information to complainants and that

the absence of such information cannot in itself warrant the conclusion

that the interference was not "necessary" (see Klass judgment loc. cit.

p. 27, paras. 57-58, and the Leander judgment loc. cit. p.27,

para. 66).

      The applicant has also criticised the fact that the decisions of

the Tribunals are not subject to any appeal to a court and casts doubt

on their effectiveness, pointing out that neither Tribunal has ever

made a determination in favour of a complainant. In addition, no

Parliamentarians play a role in the process and, he submits, the

effectiveness of the Commissioner must be in doubt since he has no

independent source of information and cannot personally review every

warrant.

      While the Commissioner does appear to choose warrants to review

on the basis of random selection (save where he decides, as in the case

of "subversion", to review a particular category in its entirety), the

Commission is satisfied that his existence must in itself furnish a

significant safeguard against abuse. The annual reports indicate that

the Commissioner, a senior member of the judiciary, takes a thorough

and critical approach to his function in identifying any abuse of the

statutory powers. In his 1991 report, however, he found no evidence to

substantiate the rumours, reported in the media (and referred to by the

applicant in the present case), of widespread use of surveillance

powers and in particular of routine interception of British businessmen

by GCHQ.

      The fact that the Tribunals have never made a determination in

favour of an applicant is insufficient, in the Commission's view, to

indicate that the system of safeguards is not effectively functioning

as intended by domestic law. The Commission notes that the possibility

of review by a court or involvement of Parliamentarians in supervision

would furnish additional independent safeguards to the system. Having

regard however to the wide margin of appreciation accorded to the

Contracting Parties in this area, the Commission finds that the 1985

Act nonetheless satisfies the threshold requirements of Article 8 para.

against any arbitrary or unreasonable use of statutory powers in

respect of an individual in the position of the applicant. It also

finds no reason in the present case to depart from its finding with

regard to the 1989 Act in the cases of Esbester and Hewitt and Harman

(loc. cit.).

        The Commission concludes that any interference in the present

case can be regarded as necessary in a democratic society in the

interests of national security and/or the economic well-being of the

country. It follows that this part of the application must be rejected

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

(Art. 27-2) of the Convention.

2.    The applicant complains that he has no effective remedy for his

complaints contrary to Article 13 (Art. 13) of the Convention, which

provides that:

      "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 recalls however that Article 13 (Art. 13) does not

require a remedy under domestic law in respect of any alleged violation

of the Convention.  It only applies if the individual can be said to

have an "arguable claim" of a violation of the Convention (Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,

p. 23, para. 52).  The Commission finds that the applicant cannot be

said, in light of its findings above, to have an "arguable claim" of

a violation of his Convention rights. It follows that this complaint

must also be dismissed as manifestly ill-founded within the meaning of

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

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission                 President of the Commission

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