J.S. v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 19173/91

by J.S.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 8 January 1993, the following members being present:

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

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

G.B. REFFI

Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 September 1992

by J.S. against the United Kingdom, and registered on

9 September under file No. 19173/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1947. She lives in

Holsworthy in Devon and is represented before the Commission by her

husband.

The applicant's husband took out an insurance policy covering

loss of income through disability to work by reason of ill-health or

disability. He claimed on the policy in late 1984, and after

proceedings were instituted, the High Court in April 1988 found in the

applicant's husband's favour and awarded £750,000, payable in

instalments until retirement age.

After the trial the applicant and her husband moved to Devon.

Notwithstanding the move, the applicant considers that she and her

husband have been subjected to surveillance by the insurance company.

In particular, they list:

- a telephone call in early 1990, allegedly from the Department

of Health and Social Security, asking for personal details;

- a visit in November 1990 from a private detective, sent by the

insurance company;

- other surveillance by the insurance company, including the

applicant's and her husband's house being watched on at least

four occasions between February and October 1990.

In December 1990 the insurance company wrote a letter to the

applicant's husband which included the following:

"We hereby categorically deny that any person has, with our

knowledge, authority or consent:-

(a) contacted your bank purporting to be or to represent either

you or your wife;

(b) telephoned you whilst impersonating a representative of the

Department of Social Security;

(c) removed or stolen your diary or any of your papers or

possessions.

These are very serious allegations. You refer to the existence

of a tape recording and we shall be obliged if you will loan us

the said tape, together with any other evidence in your

possession, in support of these complaints. We undertake to

preserve them and return the same to you unharmed within ten

days. It is imperative that we establish whether indeed someone,

purporting to represent this company, has been involved in any

such activities.

...

[in accordance with a further medical examination ...] we

arranged for a local independent representative to enquire as to

your medical condition. This enquiry was carried out openly and

without deception. Our representative called at your house and

he produced his identity document. He informed you that

seeking information regarding your illness or medical condition.

You invited him in, asking him firstly to wait in your kitchen

whilst you put your dogs away. You then offered him tea in your

living room and conversed for a considerable period of time. We

are told that the meeting was conducted amicably in an affable

manner.

If you had objected to his presence, you need only have

discontinued the conversation and asked him to leave. We

unreservedly apologise, however, if the meeting has caused

distress either to you or your wife. Certainly none such was

intended nor was our representative aware that you felt

inconvenienced."

The applicant has also submitted an extract from "Bella" magazine

in which the insurance company is quoted as saying: "... to protect our

policy-holders it is necessary to monitor claimants' progress. We have

explained this to Mr. Stevens and unreservedly apologised for any

distress caused."

The applicant has been having recurrent nightmares about the

insurance company and about feeling unable to get away from prying

eyes. Her consultant in clinical psychology has stated that her

memory, concentration and relationships have been greatly impaired,

that she has been afraid to go out, speak to people or even open the

door: she feels that she had no privacy and her every action was

observed and adversely commented on. She has been involved in psycho-

therapy since January 1991.

In June 1991 the applicant applied for legal aid to sue the

insurance company for harassment and to obtain an injunction and

damages. The application for legal aid was refused on 24 June 1991 and

her appeal to the legal aid area office was refused on 21 August 1991.

Requests for criminal proceedings to be brought have been rejected

several times, the latest being on 29 August 1991 when the police

informed the applicant that they could take no further action.

COMPLAINTS

The applicant complains that the United Kingdom has failed to

provide any form of redress for individuals or groups whose privacy has

been violated. She alleges a violation of Articles 1, 6, 8 and 13 of

the Convention.

In connection with Article 6 of the Convention, the applicant

states that if there is no right in domestic law, then a hearing is

denied.

In connection with Article 8, the applicant points out that

without any remedy citizens cannot enforce their right to privacy.

In connection with Article 13, the applicant states that her

right to privacy has been violated, and that she has no remedy.

THE LAW

The applicant alleges violation of Articles 1, 6, 8 and 13

(Art. 1, 6, 8, 13) of the Convention, alleging principally that her

privacy has been violated and that United Kingdom law fails to provide

any means for her to seek redress.

The Commission recalls that, under Article 25 para. 1

(Art. 25-1) of the Convention, it may only receive an application from

a person, non-governmental organisation or group of individuals where

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

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

has recognised this competence of the Commission. The Commission may

not, therefore, receive applications against private individuals, such

as the insurance company in the present case. The Commission further

recalls, however, that the obligation to secure the effective exercise

of Convention rights may involve positive obligations of a State, and

that these obligations may involve the adoption of measures even in the

sphere of the relations of individuals between themselves (cf. Eur.

Court H.R., X and Y v. the Netherlands judgment of 26 March 1985,

Series A no. 91, p. 11, para. 23).

In the present case, the Commission notes that the only

interference with the applicant's private life which is accepted by the

insurance company is the visit by the company's "independent

representative" which apparently passed off without undue incident.

In addition to that visit, reference is made by the applicant to a

magazine article in which the insurance company is seen to have

accepted that it "monitors claimants' progress".

The Commission finds no indication in the present case that the

activities of the insurance company were conducted in a way which could

give rise to positive obligations on the part of the State. In

particular, the Commission notes that the insurance company's

activities were directed to protecting its position in litigation

which had taken place between the applicant's husband as plaintiff and

the company, and that there is no reason to suppose that the insurance

company was conducting any kind of "vendetta" against the applicant or

her husband.

Finally, the Commission notes that the applicant has not

suggested that the activities she complains of on the part of the

insurance company are continuing, nor has she suggested that there is

approval, tacit or express, on the part of the State authorities of the

subject matter of her complaints.

In these circumstances, the Commission finds the application

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

(Art. 27-2) of the Convention.

For these reasons the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (J.A. FROWEIN)