APPLICATION / REQU TE Nº 7597/76
BERTRAND RUSSEL PEACE FOUNDATION Ltd v/the UNITED KINGDOM B E R T R AND R USS EL PEACE FOU NDAT ION Ltd c/ ROYAUME-UN I
DECISION of 2 May 1978 on the admissibility of the application DECISION du 2 mai \978 sur la tecevabilité de la requéte
Anicle i0, paragraph i, de la Convention : Les mots • sans consideration de fronti'bre • qualifient seuIemen‹ I’obIigaIi”on assume par les Ears con‹racian‹s ,
/ n’en r›'écou/e aucun droit d nrervenr/on guanr aux acres d’un Fear non conrracranr.
Oro/Is non garanr/s ' la Convention ne param/I, comme re/ aucun droii d la
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The facts of the case as submitted by the panies and apparently not in dispute between them may be summarised as follows :
The applicant is a company registered in the United Kingdom whose objects include the promotion of would peace. It is represented in proceedings belote the Commission by Mr Cedric T hornberry, Barrister-at-law, assisted by Mr Alan Ward.
In furtherance of its objects the applicant has for some years sent registered letters from the United Kingdom to individuals in the Soviet Union. These have included materials on human rights matters. The Soviet authorities began \o refuse to deliver or “lose" such mail.
The applicant adopted a course of completing, at the lime of registration. “advice of delivery notification" particulars. When a letter is not delivered, the British postal authorities make inquiries within their own service and of the Soviet authorities under the procedures laid down in the Universal Postal Convention. If a registered letter has not been properly accounted for the sender is entitled to a fixed indemnity prescribed by the Convenlion, to be paid by the British postal authorities. As between the iwo postal authorities liabilit y for the indemnity rests with the authority which fails to account properly for the letter, or is shared if responsibility cannot be established.
In 974, owing io the large number of inquiries being received, the British postal authorities tightened control on registered letters bound for the Soviei Union io enable every letter to be definitely accounted for up to the porn \ of handover to the Soviet postal authorities in Moscow. On 13 February J 975 the Soviei postal authorities wrote to ihe British authorities in the following terms
“Hereby we have the honour to inform you that our Postal Service is receiving reclamations concerning items posted by a number of persons in your country which are treated by us in accordance with Article 4 \ , paragraph 2 of the Universal Postal Convention.”
We draw your attention to the fact that we shall not make any com- pensation since these persons are using postal service for the activity incompatible with the domestic legislation of the USSR and ma\ing attempts to unscrupulously claim compensation which is not due to them."
Subsequently individual inquiries in respect of letters sent by the applicant and others were returned with an endorsement by the Soviet post Office to the effect that they declined all responsibility for the items in question.
On 30 January 1976 the British Post Office informed the applicant that the Soviet au\horities had stated that they would not accept liability to pay compensation for registered letters confiscated or destroyed because of their contents and that in their view persons sending such letters were using ihe posial service for activity incompatible wiih Soviet legislation. In these circumstances the British Post Office was not prepared to pay compensation.
The applicant then exchanged certain correspondence with the Universal Postal Union. Correspondence also took place with the British Posi Office and the Minister of State at the Department of Industry. The applicant pointed out that the action of the Soviet authorities had been illegal. It urged the British posia/ authorities to press the Soviet authorities on the matter, for instance, Dy asking for mlor mation as to who had author ised the illegal reading of its mail and questioning them about the reasons for its confiscation. I i also pressed ihe Post Office to bring legal action in the Soviet Union and aise the question with the Universal Postal Union.
The attitude of the United postal authorities was that under the Universal Postal Convention any right to compensation was abolished if the letter had been confiscated in accordance with the domestic legislation of the country of delivery. A country of delivery which confiscated a letter was required to report the fact but not io gave a detailed explanation or submit io investigation. If the postal authorities were advised by another postal administration that the latter had properly exercised its indigenous legal powers, that statement had io be accepted. The refusal of the Russian authorities to deliver a letter, as allowed for in the Universal Postal Convention, could not place any liability on the British Post Office, which suffered no damage. It was not therefore seen what legal proceedings it could institute in Russia. It was made clear to the Post Office's cusiome s that once a letter had left the country, the Post Office could not accept responsibility for ii. The Posi Office had exerted itself to the utmost to enquire into and report what had happened to undelivered letters. Where ‹esponsib'lity had agpa ently been theirs, or had not been established wiih certainty. compensation had been paid. Where the responsibility had been acknowledged I by another admin-
isi‹aiion. the Post Office had properly conveyed its decision to the customer. There was nothing further they could do to secure more compensation or guarantee delivery of letters in Russia.
In a letter from the Minister of State at the Department of industry, it was stated that much as the Government and the Post Office might deplore the way in which the Soviet authorities interfered with mail, especially in the light of the provisions of the C.S. C E. Final Act on human contacts and the exchange of information, their ability to exert pressure on them was limited. It was said, however, thai "we have in the past made very clear to the Soviet authorities the importance which ihe Government attaches to the full
A leiler of 2 April 1976 from the Post Office to the applicant states inner a/a as follows
“Once a letter, which is in the course of transit between countries, has been ef leciively handed by one administration to the nexi, the former has no funher accountability for the letted and no powe‹ of eniry to investigate what happens to it elsewhere.
There is nothing in the Convention which transfers liability for com- pensation to the coun+ry of posting once the country of delivery admits having received a registered letter. If it be a matter of fact that the country of de\ivery did not try to deliver the letter but confiscated or destroyed it, whether wiih or without the backing of its domestic legislation, there is still no liability on any other administration. These may remain the question whether liability is placed on the country of posting not by the Convention at all but by its own domestic legis- lation. I am advised that no liability can fall on the British Post Office in its capacity as ‹he administration which received an overseas registered letter from the poster, or in any other capacity, by virtue of the law of ihis country."
The applicant obtained counsel’s opinion to the effect that the British Post Office was not liable to it in United Kingdom law.
COMPLAINTS AND SUBMISSIONS OF THE APPLICANT
In its application, the applicant complained ihat the United Kingdom aulhori\ies had failed to respect its rights under Article 8 and 10 of the Convention and made the following submissions
The action of the Soviet authorities was contrary to Article 28 of the Soviet Constitution which guaranteed the secrecy of correspondence. Departments of state which violated this protection were liable to prosecution by virtue of Article 135 of the Russian Criminal Code. It was evident that without opening the letters there was no means of telling their contents, yet the Soviet authoriiies has stated that they had been seized because the postal service was being used "for activity incompatible with the domestic legislation of the USS R".
The applicant fully accepted thai the activities of the Soviet authorities could not as such be the subject of proceedings under he Convention. However, Articles 8 and 10 required the High Contracting Parties to afford a due measure of protection to persons “within their jurisdiction" lAn. 1I desiring to exercise their Convention rights of “correspondence“ and "receiving
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and imparting nfor ma‹ion“ to some point overseas. Article JO specifically guaranteed the falled right " egardless of frontiers". A Party did not have the iiabili t y of a gua anlo . It could not be held responsible under the Convenlion Ion any Interference per se of a foreign power. I I could become liable if it failed to make proper measures for the protection of the exercise of Convention lights by persons within its jurisdiction. The Commission had not shrunk from giving Article 3 a quasi-ex t aterri\o ial ambit in its case law elaiing ‹o expulsion cases This extension of the Convention’s ambit might be even more firmly justified by the nature of the "correspondence righi“ and the express terms of Article JO. The words “regardless of frontiers" should be afforded a iitera/ interpretation.
The applicant’s rights as to correspondence and communication might be interpreted in the light of international postal practice. Its right io respect for its correspondence included a right to correspond out of the country in whose |urisdiclion it was and to correspond by registered post, wiih notification of reiceipt to sender. Such right was not wholly inviolate, it was qualified in particular by paragraph l2I of Article 8. However where the Article 8 right was arbitrarily affected by a non-contracting Government, the onus was placed on the High Contracting Party in whose jurisdiction the appl› c an resided to uphold his «ghi. No evidence. save unsubstantiated s\ atement s by public authorities, had been advanced by the respondent G over nment to show — if at all — it had sought to uphold the applicant’s right
Analogous considerations applied with even mole force in respect of the applicant’s right under Article \0, which expressly had ext ate« i ior ia\ implications.
As far as ihe applicant was aware the sum total of the United Kingdom authorities’ exenions on its behalf was indicated by their unpar ticular ised and unco« oboraled slaiemenls that they had made the Soviet authorities "fully aware" of the human rights provisions of the CSCE Final Act and by a further generalised 'e Munro adumbraiion of their intent to “remind“ them of the British Government's sense of “importance" of such provisions. This was a grossly inadequate vindication of the applicant's Convention rights, and better described as a pallid excuse for their non-vindication.
Formerly sovereign states had been the subjects of international law Individual had been the mere objects of such law. They had only had such benefi\ s as were obtained for them at the discretion of their nation-states exercising their right of diplomatic protection. A Government. in considering an individual’s claim io diplomatic interposition, would habitually weigh the expediency of presenting his case against other criteria of supposed national advantage. Wilh the modern development of international human rights law, diplomatic protection was no longer exclusively within the state’s discretion. A legal duty was imposed in cases such as the present, when an individual's
human rights were grossly ignored or bleached. The state was now required to place the protection of its nationals’ human rights, at home and abroad, as the first priority of its diplomatic endeavour.
A state had a wide discretionary expanse for diplomatic action on behalf ot its nationals. The applicant's rights under the Convention had been grossly impeded. The clearest obligation in international law thus settled on the United Kingdom to uphold them and show the applicant how ii was upholding them. Otherwise it became liable for its inaction. At the very least the Gove nment was legally obliged to demonsi ate with particulariiy, to the Commission’s satisfaction thai i ‹ had exerted every means to maintain its national’s human rights.
As a final example the applicant suggested the case of the father of a family in a Convention country being lawlessly sentenced to death in another state. If his state declined to intervene because it hoped for trading or military advantages, his family would have a remedy under the Convention against the Government which took no effective measure in defence of their "righi to family life“ under Article 8, which right would have been assaulted within the jurisdiction by actions outside it. Whilst this example might seem fanciful or melodramatic, it seemed a less strong legal case than the present application, where the r‹ghts in question had a clear ex traterritorial implication.
The applicant therefore requested that its case be declared admissible.
The applicant first complains that the respondent Government have failed to take sufficient measures to protect its correspondence from inter- ference by the Soviet authorities and submits that ihey have accordingly failed to secure its right to respect for its cot espondence as guaranteed by Article 8 of the Convention and its right to impart infotmaiion “regardless of frontiers" as guaranteed by Article 10.
There has been no direct interterence with the applicant’s co tespondence by the United Kingdom authorities. Its letters have been confiscated by the Soviet authorities in Soviet territory. The confiscation of these letters is not therefore in iiself a matter for which the respondent Government is responsible under the Convention.
The applicant maintains, however, wiih reference to Article of the Convention, that the respondent Government is obliged to take measures to uphold the Convention rights of persons, such as iiself, within its jurisdiction. It suggests that action could and should have been taken by such means as diplomatic representations and enquiries, legal action in the Soviet Union, of
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reference to arbitration under the Universal Postal Union Constilution. It furihe submits that the failure of ihe respondent Government to iake action by such means renders it responsible under the Convenlion for the inter- ference wiih ihe aoolicant's mail.
The respondent Government have denied any failure to take proper measures in ihe matter vis-d-vis the Soviet Government. However. they have also submitted thai the Convention does not impose on them any obligation to take steps such as those contended for by the applicant. With reference to the terms of their declaration under Article 25 of the Convention they have also stated that they do not recognise ihe competence of the Commission to receive petitions in relation to things done or occurring in the Soviet Union. They have submitted that the application is there lote incompatible with the Convention ra//one personas. In the alternative they have submi‹ied ihat it is inadmissible on the ground that the applicant has not exhausted domestic remedies in the Soviet Un›on or on the ground that it is manifestly ill- founded.
The Commission first notes ihat the subject of the applicant’s complaint is noi the stoppage of its letters but the alleged failure of ‹he Uni ied Kingdom aulho i iies to lake adequate action. The applicant’s complaints are thus directed exclusively against the United Kingdom. The Commission has there lote first considered whether the Convenlion imposed any obligation on the United Kingdom to take aciion such as that contended for by the applicant. The applicant's complaints can only succeed f the Convention guaranteed it a right to have such action taken.
The Commission first recalls thai it has previously held that a High Contracting Party may, in certain circumstances, be liable for the acts or omissions of its authorities occurring ou \ side its territory, or having conse- quences outside its territory \ AppIicaIion No. 62311 73 ftse I-less v. ihe Uniied
6950175, Cyprus v. Turkey, Denisi”ons £1 Flepous 2, p. l25l . It has therefore considered whether the omissions complained of in this case are such as to give rise to a possible breach of the Convention.
In this respect the Commission observes that no right to diplomatic protection or other such measures by a High Contracting Party on behalf of persons within its jurisdiction is as such guaranteed by the Convention. The question nevertheless remains whether any right to diplomatic or other intervention vis I-vis a ihitd state, which by action within its own territory has interfered with the Convention rights of a person “within the Jurisdiction" of a Contrac ling State, can be inferred from the obligation imposed on the Contracting State by Article 1 of the Convention to "secure“ that person's righis.
Having considered the parties’ submissions the Commission has come io ihe conclusion ihat no such right can be inferred from Article \ of the
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Convention, in conjunction in particular with Articles ”8 and 10 of the Convention which are invoked in the present case. In reaching this conclusion ii has particularly taken into account the general arguments put forward by the respondent Government as to the implications of accepting such an Inter- pretation of the Convention. In particular it does not consider that Article 1 of the Convention can, consistently with the generally recognised principle set forth in Article 34 ot the Vienna Convention on the Law of Treaties ', be interpreted so as to give rise to any obligation on the Contracting Parties to secure that non contracting states. act‹ng within their own |urisdic tion, respect the rights and freedoms guaranteed by the Convention, even though, as in the present case, their failure to do so may have adverse effects on persons within the jurisdiction of the Contracting Stale. I I has therefore concluded that, as the respondent Government have submitted, the act . or omission forming the substantive basis of the alleged violation of the Convention must be one falling within the jurisdiction of the Contracting State, at least in the sense that it constitutes an exercise of “jurisdiction" by that state or a failure to exercise lawful jurisdiction in the sense of sovereign power. It is not sufficient that the “victim” alone is within that state’s jurisdiction. Accordingly, even though, as the applicant points out. Article 10 of the Convention guarantees the ‹ight to receive and impart information “regardless of f ont‹ers“, this does not imply any right to intervention in respect of the acts of a non-contracting state lot which the Contracting State is in no way responsible, It implies merely that the Contracting State must, in the exercise of its jurisdiction, itself respect this right.
The Commission notes, furthermore, that the circumstances of the present case are entirely different to those of expulsion cases such as the Amekrane and Lynas cases"“ to which the applicant has referred. In such cases the Commission has held thai, in exceptional circumstances, expulsion or extradition may violate the Convention. However such expulsion or extra- dition is in itself clearly an act of "Jurisdiction“ on the part of the Contracting Scale concerned, for which it is responsible under ihe Convention.
The Commission concludes therefore that the applicant has no right under the Convention to the diplomatic and other action vis-d-vis the Soviet Union which it seeks. This pan of the application is accordingly incompatible with the Convention, ravine marerae and must be considered inadmissible under Article 27 121 of the Convention.