Security and Duty of Protection

McGinley and Egan v United Kingdom (decision), 28 November 1995 [ECtHR]

Cases nos 21825/93 and 23414/94

The applicants complain under Articles 8, 10 and 11 (Art. 8, 10, 11) of the Convention in relation to interception of communications (by correspondence and by telephone) and of surveillance as a result of their activities with the BNTVA. The first applicant also complains about harassment under these Articles. The Commission recalls that the lex specialis as regards alleged interference with communication of information or ideas by correspondence is Article 8 (Art. 8) of the Convention and it is further recalled that communication by telephone is included in that concept of "correspondence" (No. 8231/78, Dec. 12.10.83, D.R. 49 p. 5 and Eur. Court H.R., A v. France judgment of 23 November 1993, Series A no. 277-B). Therefore, the Commission finds that these complaints fall to be considered under Article 8 (Art. 8) of the Convention.

The Government argue, inter alia, that since a complaint has not been made to the Interception of Communications Tribunal under section 7 of the Interception of Communications Act 1985, any complaint in respect of alleged interceptions of communications is, pursuant to Article 26 (Art. 26) of the Convention, inadmissible on grounds of non-exhaustion. In this respect, the applicants submit that an administrative practice of, inter alia, interception of telecommunications and surveillance of ex-servicemen and members of the BNTVA exists. The applicants further argue that, in any event, the Tribunal provided for under the 1985 Act is insufficient and ineffective to protect the rights guaranteed by Article 8 (Art. 8) of the Convention, particularly in light of the Government's submission that the alleged interference would not have been authorised by warrant under the 1985 Act.

The Commission recalls that it has previously found that these Tribunals together with the relevant Commissioners constitute sufficient safeguards for the purposes of Article 8 (Art. 8) of the Convention (No. 21482/93, Dec. 27.6.94, D.R. 78-A p. 119), and despite the applicants' submissions to the contrary, finds no reason in the present case to depart from that conclusion. The Commission therefore considers that the failure of the applicant to complain to any of those Tribunals constitutes a failure to exhaust domestic remedies and therefore finds the complaints of the applicants, about interception of communications and about surveillance, inadmissible pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

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