ITEMID: 001-57533
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: CHAMBER
DATE: 1984
DOCNAME: CASE OF MALONE v. THE UNITED KINGDOM
IMPORTANCE: 2
CONCLUSION: Violation of Art. 8;Not necessary to examine Art. 13;Just satisfaction reserved
JUDGES: C. Russo
TEXT: 12. Mr. James Malone was born in 1937 and is resident in Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has since ceased business as such.
13. On 22 March 1977, Mr. Malone was charged with a number of offences relating to dishonest handling of stolen goods. His trial, which took place in June and August 1978, resulted in his being acquitted on certain counts and the jury disagreeing on the rest. He was retried on the remaining charges between April and May 1979. Following a further failure by the jury to agree, he was once more formally arraigned; the prosecution offered no evidence and he was acquitted.
14. During the first trial, it emerged that details of a telephone conversation to which Mr. Malone had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the investigations. Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of State for the Home Department.
15. In October 1978, the applicant instituted civil proceedings in the Chancery Division of the High Court against the Metropolitan Police Commissioner, seeking, inter alia, declarations to the effect that interception, monitoring and recording of conversations on his telephone lines without his consent was unlawful, even if done pursuant to a warrant of the Secretary of State. The Solicitor General intervened in the proceedings on behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor, Sir Robert Megarry, dismissed the applicant’s claim (Malone v. Commissioner of Police of the Metropolis (No. 2), [1979] 2 All England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An account of this judgment is set out below (at paragraphs 31-36).
16. The applicant further believed that both his correspondence and his telephone calls had been intercepted for a number of years. He based his belief on delay to and signs of interference with his correspondence. In particular, he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state. As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping. He thought that such measures had continued since his acquittal on the charges against him.
It was admitted by the Government that the single conversation about which evidence emerged at the applicant’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant’s proceedings against the Commissioner of Police as to whether the applicant’s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant’s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed.
17. In addition, Mr. Malone believed that his telephone had been "metered" on behalf of the police by a device which automatically records all numbers dialled. As evidence for this belief, he asserted that when he was charged in March 1977 the premises of about twenty people whom he had recently telephoned were searched by the police. The Government affirmed that the police had neither caused the applicant’s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering.
18. In September 1978, the applicant requested the Post Office and the complaints department of the police to remove suspected listening devices from his telephone. The Post Office and the police both replied that they had no authority in the matter.
19. The following account is confined to the law and practice in England and Wales relating to the interception of communications on behalf of the police for the purposes of the prevention and detection of crime. The expression "interception" is used to mean the obtaining of information about the contents of a communication by post or telephone without the consent of the parties involved.
20. It has for long been the practice for the interception of postal and telephone communications in England and Wales to be carried out on the authority of a warrant issued by a Secretary of State, nowadays normally the Secretary of State for the Home Department (the Home Secretary). There is no overall statutory code governing the matter, although various statutory provisions are applicable thereto. The effect in domestic law of these provisions is the subject of some dispute in the current proceedings. Accordingly, the present summary of the facts is limited to what is undisputed, the submissions in relation to the contested aspects of these provisions being dealt with in the part of the judgment "as to the law".
21. Three official reports available to the public have described and examined the working of the system for the interception of communications.
Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...". The Committee’s report (hereinafter referred to as "the Birkett report") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report.
Secondly, a Command Paper entitled "The Interception of Communications in Great Britain" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as "the White Paper"). The purpose of the White Paper was to bring up to date the account given in the Birkett report.
Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date.
22. The legal basis of the practice of intercepting telephone communications was also examined by the Vice-Chancellor in his judgment in the action which the applicant brought against the Metropolitan Police Commissioner (see paragraphs 31-36 below).
23. Certain changes have occurred in the organisation of the postal and telephone services since 1957, when the Birkett Committee made its report. The Post Office, which ran both services, was then a Department of State under the direct control of a Minister (the Postmaster General). By virtue of the Post Office Act 1969, it became a public corporation with a certain independence of the Crown, though subject to various ministerial powers of supervision and control exercised at the material time by the Home Secretary. The Post Office Act 1969 was repealed in part and amended by the British Telecommunications Act 1981. That Act divided the Post Office into two corporations: the Post Office, responsible for mail, and British Telecommunications, responsible for telephones. The 1981 Act made no change of substance in relation to the law governing interceptions. For the sake of convenience, references in the present judgment are to the position as it was before the 1981 Act came into force.
24. The existence of a power vested in the Secretary of State to authorise by warrant the interception of correspondence, in the sense of detaining and opening correspondence transmitted by post, has been acknowledged from early times and its exercise has been publicly known (see the Birkett report, Part I, especially paras. 11, 17 and 39). The precise origin in law of this executive authority is obscure (ibid., para. 9). Nevertheless, although none of the Post Office statutes (of 1710, 1837, 1908 or 1953) contained clauses expressly conferring authority to intercept communications, all recognised the power as an independently existing power which it was lawful to exercise (ibid., paras. 17 and 38).
25. At the time of the Birkett report, the most recent statutory provision recognising the right of interception of a postal communication was section 58 sub-section 1 of the Post Office Act 1953, which provides:
"If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour ... .
Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State."
"Postal packet" is defined in section 87 sub-section 1 of the Act as meaning:
"a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram".
Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710.
26. So far as telecommunications are further concerned, it is an offence under section 45 of the Telegraph Act 1863 if an official of the Post Office "improperly divulges to any person the purport of any message". Section 11 of the Post Office (Protection) Act 1884 creates a similar offence in relation to telegrams. In addition, section 20 of the Telegraph Act 1868 makes it a criminal offence if any Post Office official "shall, contrary to his duty, disclose or in any way make known or intercept the contents or any part of the contents of any telegraphic message or any message entrusted to the [Post Office] for the purpose of transmission".
These provisions are still in force.
27. It was held in a case decided in 1880 (Attorney General v. Edison Telephone Company, (1880) 6 Queen’s Bench Division 244) that a telephone conversation is a "telegraphic communication" for the purposes of the Telegraph Acts. It has not been disputed in the present proceedings that the offences under the Telegraph Acts apply to telephone conversations.
28. The power to intercept telephone messages has been exercised in England and Wales from time to time since the introduction of the telephone. Until the year 1937, the Post Office, which was at that time a Department of Government, acted upon the view that the power which the Crown exercised in intercepting telephone messages was a power possessed by any operator of telephones and was not contrary to law. Consequently, no warrants by the Secretary of State were issued and arrangements for the interception of telephone conversations were made directly between the police authorities and the Director-General of the Post Office. In 1937, the position was reviewed by the Home Secretary and the Postmaster General (the Minister then responsible for the administration of the Post Office) and it was decided, as a matter of policy, that it was undesirable that records of telephone conversations should be made by Post Office servants and disclosed to the police without the authority of the Secretary of State. The view was taken that the power which had for long been exercised to intercept postal communications on the authority of a warrant of the Secretary of State was, by its nature, wide enough to include the interception of telephone communications. Since 1937 it had accordingly been the practice of the Post Office to intercept telephone conversations only on the express warrant of the Secretary of State (see the Birkett report, paras. 40-41).
The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes (Birkett report, para. 50). It concluded (ibid., para. 51):
"We are therefore of the opinion that the state of the law might fairly be expressed in this way.
(a) The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament.
(b) This power extends to telegrams.
(c) It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams, then it is wide enough to cover telephone communications as well."
29. Under the Post Office Act 1969, the "Post Office" ceased to be a Department of State and was established as a public corporation of that name with the powers, duties and functions set out in the Act. In consequence of the change of status of the Post Office and of the fact that the Post Office was no longer under the direct control of a Minister of the Crown, it became necessary to make express statutory provision in relation to the interception of communications on the authority of a warrant of the Secretary of State. By section 80 of the Act it was therefore provided as follows:
"A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him."
30. The 1969 Act also introduced, for the first time, an express statutory defence to the offences under the Telegraph Acts mentioned above (at paragraph 26), similar to that which exists under section 58 para. 1 of the Post Office Act 1953. This was effected by paragraph 1 sub-paragraph 1 of Schedule 5 to the Act, which reads:
"In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State."
31. In the civil action which he brought against the Metropolitan Police Commissioner, Mr. Malone sought various relief including declarations to the following effect:
- that any "tapping" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary;
- that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights;
- that the tapping of his telephone lines violated Article 8 (art. 8) of the Convention.
In his judgment, delivered on 28 February 1979, the Vice-Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of Article 8 (art. 8) of the Convention. He made a detailed examination of the domestic law relating to telephone tapping, held in substance that the practice of tapping on behalf of the police as recounted in the Birkett report was legal and accordingly dismissed the action.
32. The Vice-Chancellor described the central issue before him as being in simple form: is telephone tapping in aid of the police in their functions relating to crime illegal? He further delimited the question as follows:
"... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them." ([1979] 2 All England Law Reports, p. 629)
33. The Vice-Chancellor held that there was no right of property (as distinct from copyright) in words transmitted along telephone lines (ibid., p. 631).
As to the applicant’s remaining contentions based on privacy and confidentiality, he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant. Unlike a search of premises, the process of telephone tapping on Post Office premises did not involve any act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly, referring to the warrant of the Home Secretary, the Vice-Chancellor remarked that such warrant did not "purport to be issued under the authority of any statute or of the common law". The decision to introduce such warrants in 1937 seemed "plainly to have been an administrative decision not dictated or required by statute" (ibid.). He referred, however, to section 80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor General had based certain contentions summarised as follows:
"Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641)
"In their essentials", stated the Vice-Chancellor, "these contentions seem to me to be sound." He accepted that, by the 1969 Act,
"Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts" (ibid., pp. 641-642).
The Vice-Chancellor further concluded that there was in English law neither a general right of privacy nor, as the applicant had contended, a particular right of privacy to hold a telephone conversation in the privacy of one’s home without molestation (ibid., pp. 642-644). Moreover, no duty of confidentiality existed between the Post Office and the telephone subscriber; nor was there any other obligation of confidence on a person who overheard a telephone conversation, whether by means of tapping or otherwise (ibid., pp. 645-647).
34. Turning to the arguments based on the Convention, the Vice-Chancellor noted firstly that the Convention was not part of the law of England and, as such, did not confer on the applicant direct rights that could be enforced in the English courts (ibid., p. 647).
He then considered the applicant’s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown’s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded:
"... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure.
It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘adequate and effective safeguards against abuse’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law.
I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes."
This conclusion did not, however, enable the Vice-Chancellor to decide the case in the way the applicant sought:
"It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [the above-stated proviso]: possible ways of expressing such a rule may be seen in what I have already said. But I see the greatest difficulty in the common law framing the safeguards required by the second limb. Various institutions or offices would have to be brought into being to exercise various defined functions. The more complex and indefinite the subject-matter the greater the difficulty in the court doing what it is really appropriate, and only appropriate, for the legislature to do. Furthermore, I find it hard to see what there is in the present case to require the English courts to struggle with such a problem. Give full rein to the Convention, and it is clear that when the object of the surveillance is the detection of crime, the question is not whether there ought to be a general prohibition of all surveillance, but in what circumstances, and subject to what conditions and restrictions, it ought to be permitted. It is those circumstances, conditions and restrictions which are at the centre of this case; and yet it is they which are the least suitable for determination by judicial decision.
... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649)
He added that "this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation", and continued:
"However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted." (ibid., p. 649)
35. As a final point of substance, the Vice-Chancellor dealt, in the following terms, with the applicant’s contention that as no power to tap telephones had been given by either statute or common law, the tapping was necessarily unlawful:
"I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary’s warrant seems to me to point clearly to the same conclusion." (ibid., p. 649)
36. The Vice-Chancellor therefore held that the applicant’s claim failed in its entirety. He made the following concluding remarks as to the ambit of his decision:
"Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated." (ibid., p. 651)
37. Following the Vice-Chancellor’s judgment, the necessity for legislation concerning the interception of communications was the subject of review by the Government, and of Parliamentary discussion. On 1 April 1980, on the publication of the White Paper, the Home Secretary announced in Parliament that after carefully considering the suggestions proffered by the Vice-Chancellor in his judgment, the Government had decided not to introduce legislation. He explained the reasons for this decision in the following terms:
"The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret, and cannot therefore be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control, and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject.
Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters" (Hansard, House of Commons, 1 April 1980, cols. 205-207).
He gave an assurance that "Parliament will be informed of any changes that are made in the arrangements" (ibid., col. 208).
38. In the course of the Parliamentary proceedings leading to the enactment of the British Telecommunications Act 1981, attempts were made to include in the Bill provisions which would have made it an offence to intercept mail or matters sent by public telecommunication systems except pursuant to a warrant issued under conditions which corresponded substantially to those described in the White Paper. The Government successfully opposed these moves, primarily on the grounds that secrecy, which was essential if interception was to be effective, could not be maintained if the arrangements for interception were laid down by legislation and thus became justiciable in the courts. The present arrangements and safeguards were adequate and the proposed new provisions were, in the Government’s view, unworkable and unnecessary (see, for example, the statement of the Home Secretary in the House of Commons on 1 April 1981, Hansard, cols. 334-338). The 1981 Act eventually contained a re-enactment of section 80 of the Post Office Act 1969 applicable to the Telecommunications Corporation (Schedule 3, para. 1, of the 1981 Act). Section 80 of the 1969 Act itself continues to apply to the Post Office.
39. In its report presented to Parliament in January 1981 (Command Paper 8092), the Royal Commission on Criminal Procedure, which had been appointed in 1978, also considered the possible need for legislation in this field. In the chapter entitled "Investigative powers and the rights of the citizen", the Royal Commission made the following recommendation in regard to what it termed "surreptitious surveillance" (paras. 3.56-3.60):
"... [A]lthough we have no evidence that the existing controls are inadequate to prevent abuse, we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants. As with all features of police investigative procedures, the value of prescribing them in statutory form is that it brings clarity and precision to the rules; they are open to public scrutiny and to the potential of Parliamentary review. So far as surveillance devices in general are concerned this is not at present so.
...
We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute."
These recommendations were not adopted by the Government.
40. A few months later, the Law Commission, a permanent body set up by statute in 1965 for the purpose of promoting reform of the law, produced a report on breach of confidence (presented to Parliament in October 1981 - Command Paper 8388). This report examined, inter alia, the implications for the civil law of confidence of the acquisition of information by surveillance devices, and made various proposals for reform of the law (paras. 6.35 - 6.46). The Law Commission, however, felt that the question whether "the methods which the police ... may use to obtain information should be defined by statute" was a matter outside the scope of its report (paras. 6.43 and 6.44 in fine). No action has been taken by the Government on this report.
41. Details of the current practices followed in relation to interceptions are set out in the Government’s White Paper of 1980. The practices there summarised are essentially the same as those described and recommended in the Birkett report, and referred to in Parliamentary statements by successive Prime Ministers and Home Secretaries in 1957, 1966, 1978 and 1980.
42. The police, H.M. Customs and Excise and the Security Service may request authority for the interception of communications for the purposes of "detection of serious crime and the safeguarding of the security of the State" (paragraph 2 of the White Paper). Interception may take place only on the authority of the Secretary of State given by warrant under his own hand. In England and Wales, the power to grant such warrants is exercised by the Home Secretary or occasionally, if he is ill or absent, by another Secretary of State on his behalf (ibid.). In the case of warrants applied for by the police to assist them in the detection of crime, three conditions must be satisfied before a warrant will be issued:
(a) the offence must be "really serious";
(b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed;
(c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction.
43. As is indicated in the Birkett report (paras. 58-61), the concept of "serious crime" has varied from time to time. Changing circumstances have made some acts serious offences which were not previously so regarded; equally, some offences formerly regarded as serious enough to justify warrants for the interception of communications have ceased to be so regarded. Thus, the interception of letters believed to contain obscene or indecent matter ceased in the mid-1950s (Birkett report, para. 60); no warrants for the purpose of preventing the transmission of illegal lottery material have been issued since November 1953 (ibid., para. 59). "Serious crime" is defined in the White Paper, and subject to the addition of the concluding words has been consistently defined since September 1951 (Birkett report, para. 64), as consisting of "offences for which a man with no previous record could reasonably be expected to be sentenced to three years’ imprisonment, or offences of lesser gravity in which either a large number of people is involved or there is good reason to apprehend the use of violence" (White Paper, para. 4). In April 1982, the Home Secretary announced to Parliament that, on a recommendation made by Lord Diplock in his second report (see paragraph 55 below), the concept of a serious offence was to be extended to cover offences which would not necessarily attract a penalty of three years’ imprisonment on first conviction, but in which the financial rewards of success were very large (Hansard, House of Commons, 21 April 1982, col. 95).
Handling (including receiving) stolen goods, knowing or believing them to be stolen, is an offence under section 22 of the Theft Act 1968, carrying a maximum penalty of fourteen years’ imprisonment. According to the Government, the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large-scale thefts (see the Birkett report, para. 103). The detection of receivers of stolen property was at the time of the Birkett report (ibid.), and remains, one of the important uses to which interception of communications is put by the police.
44. Applications for warrants must be made in writing and must contain a statement of the purpose for which interception is requested and of the facts and circumstances which support the request. Every application is submitted to the Permanent Under-Secretary of State - the senior civil servant - at the Home Office (or, in his absence, a nominated deputy), who, if he is satisfied that the application meets the required criteria, submits it to the Secretary of State for approval and signature of a warrant. In a case of exceptional urgency, if the Secretary of State is not immediately available to sign a warrant, he may be asked to give authority orally, by telephone; a warrant is signed and issued as soon as possible thereafter (White Paper, para. 9).
In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met (Hansard, House of Commons, 1 April 1981, col. 336).
45. Every warrant sets out the name and address of the recipient of mail in question or the telephone number to be monitored, together with the name and address of the subscriber. Any changes require the authority of the Secretary of State, who may delegate power to give such authority to the Permanent Under-Secretary. If both the mail and the telephone line of a person are to be intercepted, two separate warrants are required (White Paper, para. 10).
46. Every warrant is time-limited, specifying a date on which it expires if not renewed. Warrants are in the first place issued with a time-limit set at a defined date not exceeding two months from the date of issue. Warrants may be renewed only on the personal authority of the Secretary of State and may be renewed for not more than one month at a time. In each case where renewal of a warrant is sought, the police are required first to satisfy the Permanent Under-Secretary of State at the Home Office that the reasons for which the warrant was first issued are still valid and that the case for renewal is justified: a submission to the Secretary of State for authority to renew the warrant is only made if the Permanent Under-Secretary is so satisfied (White Paper, para. 11).
47. Warrants are reviewed monthly by the Secretary of State. When an interception is considered to be no longer necessary, it is immediately discontinued and the warrant is cancelled on the authority of the Permanent Under-Secretary of State at the Home Office. In addition to the monthly review of each warrant by the Secretary of State, the Metropolitan Police carry out their own review each month of all warrants arising from police applications: where an interception is deemed to be no longer necessary, instructions are issued to the Post Office to discontinue the interception forthwith and the Home Office is informed so that the warrant can be cancelled (Birkett report, paras. 72-74; White Paper, paras. 12-13).
48. In accordance with the recommendations of the Birkett report (para. 84), records are kept in the Home Office, showing in respect of each application for a warrant:
(a) the ground on which the warrant is applied for;
(b) a copy of the warrant issued or a note of rejection of the application;
(c) the dates of any renewals of the warrant;
(d) a note of any other decisions concerning the warrant;
(e) the date of cancellation of the warrant (White Paper, para. 14).
49. On the issue of a warrant, the interception is effected by the Post Office. Telephone interceptions are carried out by a small staff of Post Office employees who record the conversation but do not themselves listen to it except from time to time to ensure that the apparatus is working correctly. In the case of postal communications, the Post Office makes a copy of the correspondence. As regards the interception of communications for the purpose of the detection of crime, in practice the "designated person holding office under the Crown" to whom the Post Office is required by sub-section 80 of the Post Office Act 1969 to transmit the intercepted information (see paragraph 29 above) is invariably the Commissioner of Police of the Metropolis. The product of the interception - that is, the copy of the correspondence or the tape-recording - is made available to a special unit of the Metropolitan Police who note or transcribe only such parts of the correspondence or the telephone conversation as are relevant to the investigation. When the documentary record has been made, the tape is returned to the Post Office staff, who erase the recording. The tape is subsequently re-used. The majority of recordings are erased within one week of their being taken (Birkett report, paras. 115-117; White Paper, para. 15).
50. A Consolidated Circular to Police, issued by the Home Office in 1977, contained the following paragraphs in a section headed "Supply of information by Post Office to police":
"1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information
(a) in the interests of justice in the investigation of a serious indictable offence; or
(b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or
(c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or
...
1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed
...
(g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ...
...
1.69 ...
1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied."
In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was "in some respects misleading", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases.
51. The notes or transcriptions of intercepted communications are retained in the police interception unit for a period of twelve months or for as long as they may be required for the purposes of investigation. The contents of the documentary record are communicated to the officers of the appropriate police force engaged in the criminal investigation in question. When the notes or transcriptions are no longer required for the purposes of the investigation, the documentary record is destroyed (Birkett report, para. 118; White Paper, para. 15). The product of intercepted communications is used exclusively for the purpose of assisting the police to pursue their investigations: the material is not tendered in evidence, although the interception may itself lead to the obtaining of information by other means which may be tendered in evidence (Birkett report, para. 151; White Paper, para. 16). In accordance with the recommendation of the Birkett Committee (Birkett report, para. 101), information obtained by means of an interception is never disclosed to private individuals or private bodies or to courts or tribunals of any kind (White Paper, para. 17).
52. An individual whose communications have been intercepted is not informed of the fact of interception or of the information thereby obtained, even when the surveillance and the related investigations have terminated.
53. For security reasons it is the normal practice not to disclose the numbers of interceptions made (Birkett report, paras. 119-121; White Paper, paras. 24-25). However, in order to allay public concern as to the extent of interception, both the Birkett report and the White Paper gave figures for the number of warrants granted annually over the years preceding their publication. The figures in the White Paper (Appendix III) indicate that in England and Wales between 1969 and 1979 generally something over 400 telephone warrants and something under 100 postal warrants were granted annually by the Home Secretary. Paragraph 27 of the White Paper also gave the total number of Home Secretary warrants in force on 31 December for the years 1958 (237), 1968 (273) and 1978 (308). The number of telephones installed at the end of 1979 was, according to the Government, 26,428,000, as compared with 7,327,000 at the end of 1957. The Government further stated that over the period from 1958 to 1978 there was a fourfold increase in indictable crime, from 626,000 to 2,395,000.
54. When the White Paper was published on 1 April 1980, the Home Secretary announced in Parliament that the Government, whilst not proposing to introduce legislation (see paragraph 37 above), intended to appoint a senior member of the judiciary to conduct a continuous independent check so as to ensure that interception of communications was being carried out for the established purposes and in accordance with the established procedures. His terms of reference were stated to be:
"to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister" (Hansard, House of Commons, 1 April 1980, cols. 207-208).
It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.).
55. Lord Diplock, a Lord of Appeal in Ordinary since 1968, was appointed to carry out the review. In his first report, published in March 1981, Lord Diplock recorded, inter alia, that, on the basis of a detailed examination of apparently typical cases selected at random, he was satisfied
(i) that, in each case, the information provided by the applicant authorities to the Secretary of State in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of State were appropriate to detect and correct any departure from proper standards;
(ii) that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose.
Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out.
In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock’s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned.
In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980.
56. The process known as "metering" involves the use of a device called a meter check printer which registers the numbers dialled on a particular telephone and the time and duration of each call. It is a process which was designed by the Post Office for its own purposes as the corporation responsible for the provision of telephone services. Those purposes include ensuring that the subscriber is correctly charged, investigating complaints of poor quality service and checking possible abuse of the telephone service. When "metering" a telephone, the Post Office - now British Telecommunications (see paragraph 23 above) - makes use only of signals sent to itself.
In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means.
However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761).
57. Commission, Government and applicant are agreed that, at least in theory, judicial remedies are available in England and Wales, in both the civil and the criminal courts, in respect of interceptions of communications carried out unlawfully. The remedies referred to by the Government were summarised in the pleadings as follows:
(i) In the event of any interception or disclosure of intercepted material effected by a Post Office employee "contrary to duty" or "improperly" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution.
(ii) In addition to (i) above, in a case of unlawful interception by a Post Office employee without a warrant, an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and the Post Office itself from carrying out further unlawful interception of his communications: such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act (see, for example, Gouriet v. The Union of Post Office Workers, [1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All England Law Reports 795).
(iii) On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police.
Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages.
58. The Government further pointed to the following possible non-judicial remedies:
(i) In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions.
(ii) If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant.
(iii) Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out.
According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded.
VIOLATED_ARTICLES: 8


ITEMID: 001-69898
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2005
DOCNAME: CASE OF JEDAMSKI AND JEDAMSKA v. POLAND
IMPORTANCE: 3
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicants, Mr Grzegorz Jedamski and Mrs Teresa Jedamska, are a married couple. They are Polish nationals, who were born in 1954 and 1960, respectively. They live in Mikołajki Pomorskie, Poland.
8. The proceedings summarised below have already been examined by the Court under Article 6 § 1 of the Convention from the angle of the “reasonable time” requirement. In its judgment of 26 July 2001 (Jedamski v. Poland appl. no. 29691/96) the Court (former Fourth Section) unanimously held that there had been a violation of Article 6 § 1.
9. On 22 December 1992 the Łódź Bank of Development (Łódzki Bank Rozwoju), submitting a bill of exchange payable to bearer which required the first applicant to pay on demand 19,777,167,300 old Polish zlotys (PLZ), asked the Łódź District Court (Sąd Rejonowy) to issue an order for payment against him.
10. On 14 January 1993 the court granted the plaintiff’s claim and ruled that the first applicant was to pay the sum in question within seven days from the date of service of the order or, alternatively, within the same time-limit, to lodge an appeal against the said order. The first applicant appealed.
11. On 11 February 1993, acting under a provisional writ of execution of 1 February 1993 and on a request by the creditor, i.e. the Łódź Bank of Development, the Bailiff of the Warsaw District Court (Komornik Sądu Rejonowego) made an order attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu) and an unknown sum of cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.), by way of security for the creditor’s claim for payment of PLZ 19,777,167,300 pending in the Łódź Regional Court.
12. On 26 February 1993 the first applicant lodged an unsuccessful complaint against the actions taken by the bailiff (skarga na czynności komornika), relying on Article 767 of the Code of Civil Procedure and arguing that the attached shares constituted the matrimonial property of the applicants, whereas the execution was against the applicant alone.
13. On 12 October 1993 the Łódź Bank of Development was taken over by the BIG Bank SA (Bank Inicjatyw Gospodarczych SA). The BIG Bank SA replaced the former bank as a plaintiff in the civil proceedings and as a creditor in the enforcement proceedings.
14. On 23 February 1999 the Łódź Regional Court quashed the order for payment and awarded the plaintiff bank 1,954,097.49 new Polish zlotys (PLN) [approx. EUR 442,000] together with interests and costs of the proceedings. The plaintiff bank and the first applicant appealed against that judgment.
15. On 9 April 1999 the Łódź Regional Court secured the plaintiff’s already-awarded claim by attaching the applicants’ shares in the Bank of Development of Export (Bank Rozwoju Eksportu), an amount of PLN 984,674.50 in cash deposited in the Central Brokerage Bureau of the Bank PeKaO S.A. (Centralne Biuro Maklerskie Banku Polska Kasa Opieki S.A.) and shares in the former Łódź Bank of Development (Łódzki Bank Rozwoju) (taken over by the BIG Bank SA) deposited in the Łódź District Court by the Bailiff of the Łódź District Court (Komornik Sądu Rejonowego).
16. On 6 October 1999 the Łódź Court of Appeal (Sąd Apelacyjny) dismissed the appeal lodged by the first applicant against the decision of 9 April 1999.
17. On 19 October 1999 the Łódź Court of Appeal upheld the decision of 23 February 1999.
18. On 16 November 2000 the Bailiff of the Warsaw District Court discontinued the enforcement proceedings instituted under the writ of execution of 1 February 1993. Nevertheless, the attachment of the applicants’ property made on 9 April 1999 remained in force.
19. On 26 January 2001 the Supreme Court dismissed the cassation appeal lodged by the first applicant.
20. On 10 May 2001 the Supreme Court rejected the first applicant’s request to reopen the proceedings.
21. On 28 December 2000 the applicants sued the Warsaw BIG Bank SA in the Warsaw Regional Court (Sąd Okręgowy). They sought damages of PLN 340,000,000 claiming that the attachment of their property, in particular the shares, made at the BIG Bank SA request on the basis of the quashed order for payment of 14 January 1993, deprived them of any future profit-making trade in shares at the Warsaw Stock Exchange.
22. On 23 January 2001 the applicants informed the court that, on 5 January 2001, as a result of the banks’ merger, the BIG Bank SA (Bank Inicjatyw Gospodarczych SA) had been taken over by the BIG Bank Gdański SA. From that date onwards, the BIG Bank Gdański SA replaced the former bank as a defendant in the proceedings. On an unknown date the court ordered the applicants to pay a court fee of PLN 100,000 for lodging the claim.
23. On 23 January 2001 the applicants asked the Warsaw Regional Court to exempt them from payment of that fee. They also submitted a declaration of means, pursuant to Article 113 § 1 of the Code of Civil Procedure. Their application read, in so far as relevant:
“... The plaintiffs ask for an exemption from the court fee on the ground that they cannot pay that sum as it will entail a substantial reduction in their standard of living.
The plaintiffs’ matrimonial property was seized by the Bailiff acting upon the decision of the Łódź Regional Court of 9 April 1999.
[in connection with that argument, the applicants produced a copy of that decision]
Their income from a farm, which is the second applicant’s personal property, does not suffice for the payment of PLN 3,957.50 the plaintiffs owe in tax arrears.
[in connection with this argument, the applicants produced a copy of a certificate issued by the Mikołajki Pomorskie Commune Office (Urząd Gminy) stating the anticipated income and tax arrears]
The plaintiffs declare that they are not deriving the anticipated income indicated in the presented certificate due to a shortage of funds for making investment outlays in the production.
The plaintiffs further state that, given that their other assets were attached, their only present income is that from the farm. In the circumstances, the plaintiffs are unable to pay the court fees.
Finally, the plaintiffs inform [the court] that in other civil proceedings, the Łódź Regional Court, in its decision of 9 June 1999, exempted the first applicant from paying the full amount of fees.
[in connection with that argument, the plaintiffs produced a copy of that decision]”
The declaration of means made by the first applicant read, in so far as relevant:
“The plaintiff asks for an exemption from court fees on the ground that he cannot pay the fee in question [as it will] entail a substantial reduction in his standard of living.
He has the following items of property:
1) no personal property; the average anticipated annual income from the agricultural farm is estimated at PLN 66,140.43;
2) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff);
3) 11 shares in the BIG BG SA;
4) audio and television equipment; furniture.”
24. The declaration of means made by the second applicant read, in so far as relevant:
“The plaintiff asks for an exemption from court fees on the ground that she cannot pay the fee in question [as it will] entail a substantial reduction in her standard of living.
She has the following items of property:
1) agricultural farm, the average anticipated annual income from which is estimated at PLN 66,140.43;
2) car;
3) 62,500 shares in the BRE Bank SA, 9,950 shares in the BIG Bank SA and PLN 984,674.50 in cash (matrimonial property attached by the Bailiff);
4) 11 shares in the BIG BG SA;
5) audio and television equipment; furniture.”
25. On 30 January 2001 the court rejected the applicants’ application. The reasons for that decision read, in so far as relevant:
“... As it emerges from the plaintiffs’ declarations of means, the second applicant is a sole owner of the farm of 57.44 ha ... The annual anticipated income from the farm amounts to PLN 66,140.43 and constitutes the only source of the plaintiffs’ income. Moreover, the plaintiffs are the owners of PLN 984,674.50 in cash, 62,500 shares in the BRE Bank SA and 9,950 shares in the BIG Bank SA. It is true that their cash and shares have been attached by the decision of the Łódź Regional Court, but the plaintiffs’ real financial situation does not seem to be as bad as they present it. Taking into consideration their assets and income derived from the farm, the plaintiffs are able to pay the full amount of the court fees without any reduction in their family’s standard of living. When deciding to bring the present claim, the plaintiffs should have taken into account the fact that it would involve the necessity of paying court fees. They should therefore have secured financial means in anticipation of the litigation...”
26. On 13 February 2001 the applicants lodged an interlocutory appeal (zażalenie) against that decision. They alleged a breach of Article 113 § 1 of the Code of Civil Procedure and Article 6 § 1 of the Convention. The applicants maintained that it had clearly emerged from the documents produced by them, in particular the Łódź Regional Court’s decision to secure the plaintiff’s claim for payment by attaching the applicants’ shares and the declaration setting out the average anticipated annual income from the farm, that they were unable to pay the court fee of PLN 100,000 imposed on them.
27. On 9 March 2001 the Warsaw Court of Appeal (Sąd Apelacyjny) dismissed the appeal. The relevant part of that decision read:
“... The plaintiffs’ assets are of a considerable value and they several times exceed the average level of means. This conclusion cannot be changed by the fact that part of their property is attached in other civil proceedings. The plaintiffs still remain the owners of their property and, consequently, should be able to take necessary measures to gather sufficient means to pay the court fees. The plaintiffs are involved in a number of proceedings concerning pecuniary and non-pecuniary rights to their shares in commercial companies and, in the past, they made a large number of transactions on the stock exchange market. These facts indicate that the plaintiffs ... cannot be regarded as indigent and that the court fees for lodging their claim should not be borne by the State.
Their declaration of means is dubious because it is not complete. The plaintiffs did not indicate precisely whether they had title to their apartment. They did not reveal the real income derived from the farm. Nor did they produce any information concerning the type of activities in which they are engaged on their farm. Moreover, [the first applicant] failed to indicate his place of employment; his being his wife’s dependant seems doubtful.... Lastly, the plaintiffs did not supply any information concerning their house or the farm equipment. That information would have enabled the court to ascertain their real standard of living.
Assessing all the circumstances, the following conclusion can be drawn: the plaintiffs, who have failed to show their current financial situation and to reveal their income, cannot successfully challenge the first-instance decision which rejected their application for an exemption from court fees. They cannot therefore complain that they are deprived of access to a court.
In addition, it should be pointed out that the amount of the court fee is based on the value of the claim in question and that [that value] depended on the plaintiffs....”
28. On 30 April 2001 the Warsaw Regional Court ordered the applicants to pay PLN 100,000 for lodging their claim. The applicants did not pay that sum. As a consequence, on an unknown date, the Warsaw Regional Court ordered that the applicants’ statement of claim be returned to them (zarządził zwrot pozwu), which meant that their claim was of no legal effect and that the relevant proceedings were, for all legal and practical purposes, regarded as having never been brought before the court.
29. Under Polish law every plaintiff is obliged to pay a court fee at the time of lodging a statement of claim with a court. As the case proceeds, either party is obliged to pay further court fees at the time of lodging any appeal or constitutional complaint, unless granted an exemption from such fees.
Court fees are based on a percentage (if a fee is due for lodging a claim or an appeal) or a fraction (if a fee is due for lodging an interlocutory appeal) of the value of the claim in question.
The court fees incurred by either party can, depending on the outcome of the litigation, be finally repaid by the losing party (who, in principle, is ordered to pay all the costs of litigation in a final judgment).
30. There are, however, categories of litigants who are exempted from court fees by virtue of statutory provisions. Some of those categories are listed in Article 111 § 1 of the Code of Civil Procedure. That provision, in the version applicable at the relevant time, exempted from court fees a party lodging a paternity action, a party seeking maintenance, a prosecutor, a court-appointed guardian and “any party exempted from court fees by the competent court” (that is to say, a party who had been granted an exemption under Article 113 of the Code, cited below).
31. The other categories of these exempted litigants are listed in, inter alia, sections 8 and 9 of the Law of 13 June 1967 on Court Fees in Civil Cases (Ustawa o kosztach sądowych w sprawach cywilnych).
Under section 8 of the Law, the State Treasury, municipalities and other public organs or institutions are not obliged to pay court fees, provided that the claim in question does not relate to their business activity. Section 9 authorises the Minister of Justice to exempt non-governmental organisations from court fees.
32. In case of a successful outcome of litigation initiated by a person exempted from court fees, the fees which would normally have been collected from that person for lodging and proceeding with his claim are awarded to the State Treasury against his opponent.
33. The Law of 13 June 1967 on Court Fees in Civil Cases (as amended) sets out general principles with respect to the collection of fees by courts.
Section 5(1) of the Law, in the version applicable at the material time, stipulated:
“Unless otherwise provided by the law, a party who has submitted to a court a pleading which is subject to court fees, shall pay such fees.”
34. The relevant part of section 16 of the Law, in the version applicable at the material time, provided as follows:
“1. The court shall not take any action if the court fee due for lodging a given pleading is not paid. In such a case the president of the court shall order the party concerned to pay the fee due within a period not exceeding seven days, on pain of having the pleading returned. If the party does not comply with the time-limit, the pleading shall be returned to this party.
...
3. Any appeal, cassation appeal, interlocutory appeal or objection to a judgment by default ... shall be rejected if the court fee due is not paid within the [above] time-limit.”
35. Section 18 provided:
“A pleading which has been returned to a party as a result of the fact that the court fee had not been paid, shall be of no legal effect.”
36. The relevant part of paragraph 1 of the Ordinance of the Minister of Justice of 17 December 1996 on Determining Court Fees in Civil Cases (Rozporządzenie Ministra Sprawiedliwości w sprawie określania wysokości wpisów w sprawach cywilnych) (as amended), in the version applicable at the material time, stated:
“(4) Where the value of the claim exceeds PLN 100,000 the court fee shall amount to PLN 6,600 for the first PLN 100,000 and 5% of the remaining value of the claim. In any case the court fee due shall not exceed the sum of PLN 100,000.”
37. Exemption from payment of court fees was (and still is) a matter for the discretion of the court competent to deal with the case.
Article 113 § 1 of the Code of Civil Procedure, in the version applicable at the material time, stipulated:
“An individual may ask the court competent to deal with the case to grant him an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family’s standard of living. Such a declaration shall contain details concerning his family, assets and income. It falls within the court’s discretion to assess whether or not the declaration satisfies the requirements for granting the exemption requested.”
The grounds for exempting legal persons, companies and business enterprises from court fees were, however, formulated in a different way from the grounds applying to natural persons. Paragraph 2 of Article 113 of the Code of Civil Procedure in the version applicable at the relevant time read:
“A legal person, or an entity not possessing legal personality, which has demonstrated that it does not have sufficient financial means for court fees, may be granted an exemption from those fees.”
Article 116 § 1 of the Code of Civil Procedure provides:
“In case of doubt ... as to the real financial situation of the party requesting exemption from court fees, the court may order a verification of his declaration.”
The relevant part of Article 120 § 1 of the Code, in the version applicable at the material time, stated:
“The court shall revoke an exemption from court fees or legal assistance granted if the basis therefor did not exist or has ceased to exist. In either instance the party concerned shall pay all court and/or legal fees due in his case...”
38. Fees collected by courts do not constitute, nor are they equivalent to, security for costs. The court fees are transferred by financial departments of the courts to the State Treasury and are deemed to be part of its income.
39. On 11 January 1995 the Supreme Court (Sąd Najwyższy) gave a decision in which it referred for the first time to the “right to a court” guaranteed under Article 6 § 1 in the context of the requirement to pay court fees for lodging a claim or appeal (decision no. III ARN 75/95, published in OSN Zb. U. 1995, no. 9).
That ruling concerned an extraordinary appeal lodged by the First President of the Supreme Court with the Supreme Court. The appeal was directed against a decision of the Supreme Administrative Court, refusing to exempt a claimant in administrative proceedings from payment of court fees. The Supreme Court held as follows:
“1. From the date on which Poland became a member of the Council of Europe, the case-law of the European Court of Human Rights in Strasbourg may and should be taken into account in interpreting Polish law.
2. If the subject matter of a case is the party’s application for substantial financial assistance from the public authorities, particular diligence should be displayed in considering [that party’s] parallel application for an exemption from court fees. [Any decision] rejecting such an application should give relevant and particularly cogent reasons so as not to amount to an actual denial of the right to a court (as secured by Article 6 of the European Convention of Human Rights) ...”
Although the relevant decision related to court fees for lodging an appeal with the Supreme Administrative Court by a person who had requested financial assistance from the public authorities, it has been applied mutatis mutandis to civil cases.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-77886
LANGUAGEISOCODE: ENG
RESPONDENT: MKD
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: JAKIMOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Peer Lorenzen
TEXT: The applicant, Mr Zivko Jakimovski, is a citizen of the former Yugoslav Republic of Macedonia who was born in 1954 and lives in Skopje. He is represented before the Court by Mr P. Cvetanov, a lawyer practising in Skopje, in the former Yugoslav Republic of Macedonia.
1. On 26 September 1994, the Army Chief Commander drew up a list of candidates (army officers) (“the list”) eligible to be granted a tenancy of a limited number of army apartments for the purpose of acquiring property. The applicant, an Army officer, was one of the candidates who applied for an apartment.
On 5 October 1994 the applicant objected to the results and the list. He complained that according to the criteria, as specified by the relevant Rules (Правилник за условите и начинот на решавање на станбените прашања на вработените во Министерството за одбрана, воените старешини и граѓанските лица на служба во Армијата на Република Македонија) (“the Rules”), he should have been ranked higher and accordingly been granted a tenancy of an apartment instead of some of the other army officers. His complaint was dismissed by the Army Chief Commander on 9 March 1995. Meanwhile, in November 1994 other members of the armed forces (Mr V.V., Mr I.Z and Mr D.Z.) were granted tenancies by the Army Chief Commander.
On 29 March 1995 the applicant brought a civil action against the Ministry of Defence (“the Ministry”) for the annulment of the list and the Army Chief Commander’s decisions granting tenancies to Mr V.V., Mr I.Z. and Mr D.Z. It was followed by a request for an interim order to prohibit the Ministry from concluding a sales agreement concerning the apartments granted to his colleagues.
On 4 April 1995 the then Skopje Municipal Court (Општински суд Скопје) requested the applicant to clarify his claim. On 21 April 1995 the applicant submitted to the court the required information (he inter alia, extended his claim to Mr V.V., Mr I.Z and Mr D.Z.).
On 27 June 1995 the Skopje Municipal Court dismissed the applicant’s request for an interim order.
On 21 July 1995 the applicant appealed against the decision.
On 2 November 1995 the then Skopje District Court (Окружен суд Скопје) dismissed the applicant’s appeal and upheld the lower court’s decision.
On 14 July 1997 the Skopje Court of First Instance dismissed the applicant’s claim on the merits. It established that the applicant had been an army officer since 1979, i.e. a major and that he had applied for an army apartment. The apartments were part of the Army’s housing fund scheduled for sale. The court found that there had been no procedural violation of the Rules and that it had not been necessary to announce the provision of the apartments. It held that Mr V.V. and Mr D.Z. had been correctly given a priority in respect to the applicant.
On 11 June 1998 the applicant appealed against this decision.
On 28 November 1998 the Skopje Court of Appeal dismissed the applicant’s appeal and upheld the lower court’s decision.
On 30 December 1998 the applicant lodged with the Supreme Court an appeal on points of law (ревизија).
On 20 December 2000 the Supreme Court dismissed the applicant’s appeal on points of law. It found no grounds to depart from the legal reasoning of the lower courts that domestic law had been correctly implemented and that the apartments had been granted in compliance with the relevant Rules. This decision was served on the applicant on 17 January 2002.
2. In a separate set of proceedings, in April 1996 the Ministry brought criminal charges for forgery against Mr D.Z., one of the successful candidates who had been granted tenancy of an apartment. On 3 June 1997 the public prosecutor rejected them as the charges did not concern an offence that could be prosecuted ex officio.
On 13 October 1998 the Ministry again brought criminal charges for forgery against Mr D.Z. On 29 October 1998 the public prosecutor rejected the Ministry’s criminal complaint as time-barred.
On 23 November 1998 the applicant brought separate criminal charges for forgery against Mr D.Z. On 31 March 1999 the public prosecutor lodged an indictment against him before the Skopje Court of First Instance.
On 26 June 2000 the Skopje Court of First Instance dismissed the charges and acquitted the accused. It appears that the applicant did not appeal this decision.