The European Commission of Human Rights sitting in private on
13 May 1986, the following members being present:

              MM. C. A. NØRGAARD, President
                  J. A. FROWEIN
                  F. ERMACORA
                  E. BUSUTTIL
                  G. JÖRUNDSSON
                  S. TRECHSEL
                  B. KIERNAN
                  A. WEITZEL
                  J. C. SOYER
                  H. G. SCHERMERS
                  H. DANELIUS
                  G. BATLINER
             Mrs. G. H. THUNE
              Sir Basil HALL

              Mr. H. C. KRÜGER Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 21 March 1985 by
W.B. against the United Kingdom and registered on 29 April
1985 under file No. 11516/85;

Having regard to the report provided for in Rule 40 of the Rules of
Procedure of the Commission;

Having regard to:

-       the Commission's decision of 10 July 1985 that notice should
be given to the respondent Government of the application and that they
should be invited to submit their observations in writing on its
admissibility and merits pursuant to Rule 42 para. 2 (b) of the Rules
of Procedure;

-       the respondent Government's observations of 30 October 1985
and those of the applicant's representatives in reply of 21 January
1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts, as they have been submitted on behalf of the applicant, a
British citizen born in 1930, whose home is in Inverness, by his
representative Mr. David Watt, solicitor of Inverness, may be
summarised as follows:

The applicant's wife was murdered on 31 March 1984.  The circumstances
surrounding the last hour and a half of her life are unclear.  She was
certified dead at 12.20 am, the actual time of death being estimated
to have been at midnight.  It appears that she was murdered in a block
of flats and was dragged out of the building and into the road.  She
had been hit on the head with a candle holder and her throat was cut,
severing her windpipe and major arteries.

In the previous part of the evening the applicant's wife had been met
by her subsequent assailant, D, and his uncle and aunt in a bar.  They
all went together to the flat at approximately 9.50 pm and D's uncle
and aunt left at approximately 10.40 pm, the arrangement being that
the applicant's wife and D would follow them later to another bar.

On 2 April 1984 the Procurator Fiscal at Inverness instructed two
pathologists to conduct a post mortem examination of the deceased. The
examination  was conducted in a local hospital on the same day; the
pathologists reported the cause of death as being head and neck
injuries.

On 3 April 1984 the Procurator Fiscal told D's solicitors that they
might conduct a post mortem examination.  A second post mortem
examination was accordingly conducted on 5 April 1984 and the
deceased's body was released to the applicant for burial on the same
day.

On 5 April 1984 the pathologists reported their summary opinion to the
Procurator Fiscal as to the cause of death.  They stated that the
deceased had suffered severe injuries to the head and face from a
blunt instrument, sufficient to cause fractures of the skull and
facial bones, with underlying bruising of the brain.  In addition
there were several deep lacerations of the neck which had completely
severed the windpipe and gullet.  The presence of a substantial amount
of swallowed and inhaled blood indicated that the throat had been cut
following the head injury.

In his observations of 21 January 1986 in reply to those of the
respondent Government the applicant also alleged that he was refused
access to his wife's body following the post-mortem examiantions and
that he was refused permission to take the body to his home to mourn
her during the night of 5 to 6 April 1984, prior to her burial.

When charged with the applicant's wife's murder, D decided to plead
guilty, thereby avoiding a full public trial under the Scottish
accelerated procedure.  In consequence, many of the details of what
happened to the applicant's wife were not revealed, as they would
normally have been under cross-questioning in court.

The applicant is anxious to have sight of the pathologists'
post-mortem report in order to ascertain what physically happened to
his wife on the night of her death.  The Procurator Fiscal has refused
to release a copy of this document to the applicant.

The applicant wrote to the chief pathologist at the hospital on
30 June 1984 stating that he was very concerned about the injuries
which his wife had received just before her death and that he was not
satisfied  by the reports in the newspapers.  He requested a "full
report" on his wife's death.   The pathologist forwarded the letter to
the Procurator Fiscal who informed the applicant on 6 July 1984 that
it was not possible to provide the applicant with such a report since
it was "a confidential document drawn up in connection with the
criminal proceedings involving D".

The applicant then wrote to the pathologist on 14 July 1984 asking:

"If you cannot give me the full report on the causes of my wife's
death could you please give me an outline or brief report.  Afterall I
am (the deceased's) husband. And, I am entitled to know what happened
to my wife ... "

The letter was passed to the Procurator Fiscal, who advised the
applicant to instruct a solicitor.

The applicant instructed solicitors to approach the Procurator Fiscal
on his behalf.  A meeting attended by a representative of that firm
was arranged for 9 August 1984 when certain details of the
circumstances of the applicant's wife's death were discussed.  The
representative's note of that meeting is accepted by the parties as
generally accurate and reads as follows:

"9 August 1984

Attendance with Procurator Fiscal discussing case

(The applicant's wife) was certified dead by Dr. M at 12.20 a.m. on
31 March 1984 on the roadway near the T Inn. When she actually died it
is impossible to say.  She was murded in DC flats.  She was dragged
from the flat and across the road towards the Quay.  D was stopped on
T Road.  The actual facts are not clear as it was only the accused and
the deceased in the flat.  Her throat was cut in the flat and she died
immediately.  A knife was used. A bloodstained table knife was found
- possibly more than one knife used.  Her windpipe was completely
severed and also her gullet.  She also had a broken skull - she was
hit over the head with a candle holder.  They understand that an
argument started because she wanted more drink. All the injuries were
to her head.  She was unmarked on the rest of her body.

The accused and [his] aunt and uncle were having a drink in the L Bar
and met up with [the applicant's] wife very drunk.  They left at
approximately 9.50 p.m. to go back to the flat at C Park.  They all
went to the flat, no arguments or anything wrong.  They were going
back for a party or a drink.  The aunt and uncle left the flat at
approximately 10.40 p.m. to go to the T [Inn].  D and [the applicant's
wife] were supposed to follow.  When the aunt and uncle left
everything was fine - no arguments and the flat was in perfect order.
The next anybody knows is when he was found dragging the body.

All her clothes were absolutely sodden with blood. The Procurator
Fiscal was not prepared to give them back for various reasons.
Hepatitis for one and public hygiene the other and after taking
medical advice he said they should be destroyed.  However he is not
certain if this did actually happen."

The applicant then approached the Lord Advocate at the Crown Office by
letter of 14 November 1984 in the following terms:

"Dear Sir,

Brutal Murder of [the applicant's wife] 30 March 1984, Inverness

For the last six months I have asked the Procurator Fiscal to hand
over the pathologist's report on my wife's death.  However, he refuses
to do so.  As the accused pleaded guilty there was no trial in
Inverness.  Therefore, we have no information about the circumstances
of my wife's murder and the full nature of her injuries.  The defence
ordered their own pathologist's report.  So, they know more about it
than I do.  Is this true justice?

After all, I am [her] husband and I should have all the information.
The [Procurator] Fiscal would have had to make all the information
public if there had been a trial.

All this information belongs to the people not to the Procurator
Fiscal.  I want the pathologist's report and I will not rest until I
get it ...

I believe that more than one person was involved in [the applicant's]
murder.  This is my opinion after I saw the injuries."

He was informed on 4 December 1984 by letter that the post-mortem
report was a confidential document which could not be released.  The
Lord Advocate's Office recalled that certain information had been
given to the applicant's solicitor on his behalf in relation to the
circumstances of his wife's death, and the letter continued:

"It is not the practice in any case to provide the victim's family
with a copy of the post-mortem report and I am instructed to inform
you that the Lord Advocate is not prepared to authorise
the release of a copy of the report to you.  Efforts have already
been made to provide you with information about the case in
addition to such information as is contained in the press report.
However, if there are any other outstanding matters on which you
wish information, the Procurator Fiscal will be happy to discuss
these (with your solicitors)."

On 19 November 1984 the applicant wrote to the Minister of State at
the Scottish Office in Westminster in similar terms concerning his
right of access to the report and adding:

"To think that this pathologist cut up my wife's body after the brutal
murder.  This was completely unnecessary. Also, I want to know if any
parts of my wife's body were removed.

I will have this pathologist by the balls if he does not hand over the
report.  All I want is a piece of paper. It appears that one runs up
against one wall after another when dealing with authority.
Particularly the medical profession ... "

The applicant then approached his member of Parliament, who was also
refused permission to see the post-mortem report on 18 January 1985,
when he nevertheless informed the applicant that the Lord Advocate had
confirmed that the Procurator Fiscal would make available to the
applicant, through his solicitors, "any details of your wife's death
which cause you concern".  The applicant's solicitors again contacted
the Procurator Fiscal on the applicant's behalf on 4 March 1985 when a
further meeting was held at which the Procurator Fiscal answered the
applicant's questions as put.  The following record of the meeting is
accepted as accurate by the parties:

"FILE: William Bell

DATE: 4 March 1985

Meeting with the Procurator Fiscal, Inverness

The Procurator Fiscal declined to supply any copies of the records
relating to the murder of [the applicant's wife].

The Procurator Fiscal agreed to answer any questions from the very
extensive files as follows:

1.      Did she die of brain damage due to blows to the head?

Answer: Death was from a neck wound, wind pipe was severed below the
thyroid cartilage.  The gullet was cut severing the main artery, as a
result she would have died very quickly.

2.      Were there signs of sclerosis of the liver?

Answer: No.  The liver was normal.

3.      Was she cut on the chest and arms?

Answer: There were abrasions on both the left and right elbows.  There
were lineal scratches on the lower abdomen.  There were scratches on
the Iliac Crest.

4.      Time of death?

Answer: Dr.  M pronounced her dead at 12.20 when he was called to the
scene where the body was found at the P Centre on T Road.  The time of
actual death was estimated to be about approximately midnight.

5.      Why did she have a hole in her hand - as if she grabbed an
instrument?

Answer: There was a cut on the back of the right hand, the back of the
second digit on the right hand was cut.

6.      The couple left C Park at ten minutes to 11 p.m. - after that
things went wrong?

Answer: D's uncle and aunt left the flat at 10.40 p.m. The accused and
the deceased were left in the flat on their own.  There is no
information from that point except the accused's statement.  There is
little information.  The accused admitted he was alone with the
deceased.

He stated:

'she was wanting more drink and I did not.  She started slapping and
nagging me.  I took this for so long and I hit her with the
candlestick, she kept coming at me and I went berserk.  After that I
don't know what happened'.

7.      Was D blazing drunk, did not know what happened?

Answer: D was drunk.  The second part of the question is contained in
question 6.

8.      Why did [the applicant's wife] go to that house, she was in a
girlfriend's flat, why did they not leave her in the flat?

Answer: D invited them to his girlfriend's flat after they had been
drinking at the L Bar.  (D's girlfriend was not present and is not
listed as a witness).  The reason why the deceased left her
girlfriend's flat is unknown.  She did not leave the flat at C Park
alive, she was dragged out after she was attacked.

9.      Who was involved - when did things happen?

Answer: Only D, who was alone with the deceased between 10.40 and
approximately midnight when a witness saw them in the parking area
outside the flat.  The witness stated that he saw a man who appeared
to be attempting to lift a woman who was lying in the carpark.  The
witness offered help but the man said he would manage without help.
Thereafter the accused was seen dragging the deceased along T Road.
Mr. G, a taxi driver, reported the matter to the police.

The only evidence of what happened when they were left in the flat,
and what followed on until the witnesses reported the above scenes, is
the accused's statements. There is evidence of blood in the flat, also
on the staircase which would indicate that the applicant's wife was
dead when she was dragged down the stairs from the flat.  The
deceased's head was badly smashed in fact beyond identification when
the body was examined but the cause of death was established as a
result of the neck wound."

The applicant has been informed that the Procurator Fiscal is prepared
to answer any further questions which he may wish to put concerning
his wife's death and injuries.

COMPLAINTS

The applicant contends that the denial of an opportunity to see a copy
of the pathologist's report made at the post-mortem investigation is
an infringement of his rights under Article 10 of the Convention
(Art. 10), and specifically the right to receive information.  If the
case against D had gone to trial in the normal way, this information
would have been likely to have been printed in the newspapers and have
become common knowledge.

Although the applicant was able to ask questions of the Procurator
Fiscal through his solicitors, this is not satisfactory because the
applicant does not have sufficient knowledge of what may have been in
the report and so cannot form questions without sight of it which
would answer the queries in his mind.  Given that such a report would
be common knowledge in certain circumstances, and would be made
available even if not public in other circumstances, the applicant
contends that there is a violation of Article 10 of the Convention
(Art. 10) in the present case.  The applicant's representatives
further indicate that from their contacts with the Procurator Fiscal,
it appears that there would have been no real objections to providing
a copy of the report had this been intended for some person other than
the applicant, who is well-known in Inverness, and feels himself to be
victimised because of his political views.

In his observations in reply to those of the respondent Government the
applicant also complained that he was denied access to his wife's body
following the post-mortem examinations and was not permitted to mourn
her at his home prior to her burial.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 March 1985 and registered on
29 April 1985.

On 10 July 1985 the Commission decided, in accordance with Rule 42
para. 2(b) of its Rules of Procedure, that notice should be given to
the respondent Government of the application and that they should be
invited to submit their observations in writing on its admissibility
and merits before 31 October 1985.

The respondent Government's observations were submitted on
30 October 1985, and the applicant's representative was requested to
submit any observations in reply before 3 January 1986.  The
representative requested and was granted an extension in this
time-limit until 20 January 1986, and his observations in reply were
submitted on 21 January 1986.

SUBMISSIONS OF THE PARTIES

Submissions of the respondent Government

Normal practice

Section 102 of the Criminal Procedure (Scotland) Act 1975 provides
that when an accused person indicates that he wishes to plead guilty
and to have his case disposed of at once, he is served with an
indictment and a notice to appear before the appropriate court.  In
the present case the appropriate court was, by virtue of the operation
of paragraph 10 (2) of the Act of Ajournal (Procedures under Criminal
Justice) (Scotland) Act 1980 No. 3 (1981) S.I. 1981 No. 1766 the High
Court sitting in Edinburgh.

Under the law of Scotland, there is no general right for any person to
obtain documents prepared by or for the Crown prosecution authorities
for the purpose of the consideration or conduct of criminal
proceedings.  Where a death occurs in suspicious circumstances a
post-mortem report is obtained by the Procurator Fiscal, who is the
local representative of the Lord Advocate who has overall
responsibility for the prosecution of crime in Scotland.  The purpose
of such a report is for use in connection with criminal proceedings
exclusively.

An accused person is entitled to seek documents which are to be
produced in evidence in criminal proceedings against him by virtue of
Section 83 of the Criminal Procedure (Scotland) Act 1975.  Subject to
that provision documents listed as productions are otherwise
confidential unless or until revealed in evidence in open court.  They
may be seen by the presiding judge, and, in his discretion, by members
of the jury.  It is settled law (Mcglashan v. HM Advocate (1948)
Arkley 500) that such documents prepared at the instance of the Crown
and intended for use only at a criminal trial are the property of the
Crown and remain so even after any proceedings for which they were
prepared.

A party to civil proceedings in Scotland is entitled to ask the Court
to grant a diligence to obtain delivery of documents relevant to the
civil proceedings.  The Court of Session has consistently recognised
the right of the Lord Advocate to object to the production of
documents in the hands of Procurators Fiscal prepared or received for
the purpose of the investigation and prosecution of crime, if the
Lord Advocate considers that their production would not be in the
public interest.  The Court retains the right to overrule such an
objection in an exceptional case (Dowgray v. Gilmour (1907) SC 715 at
720).

This case law is supplemented by the current statutory provisions in
relation to the production of documents in civil proceedings,
contained in the Administration of Justice (Scotland) Act 1972,
Section 1 of which grants power to the Court of Session and the
Sheriff Court to make appropriate orders in respect of any documents
which may be relevant for civil proceedings.  There is no reported
case this century of any decision by a court in Scotland to order
production of documents in the hands of the criminal prosecuting
authorities when objection to such production has been made by the
Lord Advocate, but none of the reported cases has dealt specifically
with the production of a post-mortem report.  The Lord Advocate may,
if he considers it to be in the public interest, authorise a
disclosure of documents held by the Crown Prosecution Service, or not
object to their disclosure when it is requested in civil proceedings.

It should be added that the next of kin may arrange himself for a
further post-mortem examination to be carried out after a body has
been released for burial, following a post-mortem conducted on the
instructions of the Procurator Fiscal.

Admissibility and Merits

1.      Article 25 para. 1 (Art. 25-1)

The respondent Government contend first that the applicant cannot
claim to be a victim within the meaning of Article 25 of the
Convention (Art. 25), since he has been provided with the information
contained in the post-mortem report about the cause of his wife's
death, the nature and extent of her injuries and what physically
happened to her on the night of her death.  In addition at no time has
the Procurator Fiscal refused to answer questions on these matters put
on the applicant's behalf through his solicitors, and he remains
willing to deal with any further questions.

Article 8 (Art. 8)

In view of the Court's judgment in the Belgian linguistic case (Eur.
Court H.R., Belgian Linguistic judgment of 23 July 1968, Series A
no. 6 at paras. 6 and 7) the object of this provision is essentially
that of protecting the individual against arbitrary interference by
the public authorities in one's family life.  No issue of private
life, home or correspondence arises in the present case, and the
respondent Government contend first that the refusal of the Procurator
Fiscal and the Lord Advocate to permit the applicant to see the
post-mortem report on his wife cannot be an interference with his
family life as the post-mortem report as such does not form part of
that family life. It is information prepared for the Procurator
Fiscal, and any complaint concerning non-disclosure of such a document
therefore falls to be considered exclusively under Article 10
(Art. 10) and not under Article 8 (Art. 8).

In addition, the applicant has in fact received the information which
he seeks about the cause of his wife's death, the injuries sustained
by her and what physically happened to her on the night of her death
and the refusal of the relevant authorities to permit the applicant to
see or receive a copy of the post-mortem report itself does not, in
the submission of the Government, constitute an interference with his
rights under Article 8 (Art. 8).  A post- mortem report contains detailed
medical information about the full examination of the deceased's body.
It may include information about the deceased of which the deceased's
spouse was unaware, and which may have been deliberately concealed by
the deceased from his or her spouse during the subsistence of the
marriage.  The right to respect for family life under Article 8
(Art. 8) does not extend to confer an entitlement to receive a report
containing such detailed medical information while the family unit
remains in existence during the life of the spouse, and hence cannot
confer such an entitlement to receive a post-mortem report containing
such information in the hands of the Crown authorities after the death
of the spouse.

The respondent Government therefore contend that the application is
incompatible ratione materiae with the provisions of the Convention,
or alternatively manifestly ill-founded.

Article 10 (Art. 10)

The respondent Government submit that there has been no interference
with any right conferred by this provision, since the applicant has in
fact received the information which he sought regarding the cause of
his wife's death, the injuries sustained by her and what physically
happened to her on the night of her death.  In his request for a sight
or a copy of the post-mortem report, the applicant has never stated
exactly why he is seeking to physically see or hold the report.

With regard to the particular questions which he has raised concerning
his wife's injuries, their extent, the circumstances of her death, and
the applicant's speculation that more than one person was involved in
his wife's murder, detailed answers have been provided to him at
meetings with his representatives on 9 August 1984 and 4 March 1985.
The Procurator Fiscal has not declined to answer any question asked of
him on the applicant's behalf, and the applicant's contention that,
without access to the post-mortem report, he is unable to form
questions that would answer queries in his mind is spurious and
unsupportable.

The applicant, in the statement of the object of his application,
states that he wishes to be allowed sight of the post- mortem report
in order "to discover what is known of the circumstances of the murder
and what happened to his wife on the night of her death".  This
information has already been provided by the Procurator Fiscal, who is
willing to deal with any further request for information as the
applicant has already been informed.

Nor would the whole contents of the post-mortem report have been made
public had the applicant's wife's murderer pleaded not guilty.  Only
the information which was relevant to support the charge
of murder and was necessary to prove that charge would have been
required to be made public had there been a trial.  The post-mortem
report is a technical medical document containing information as to
the nature and extent of injuries and what physically happened to the
deceased's body.  It would normally be referred to by witnesses, but
not narrated in full.  It would not be made available to the press in
the event of a trial.  In all these circumstances the respondent
Government contend that there is no interference with the applicant's
right to receive information protected by Article 10 of the
Convention (Art. 10).

If the Commission nevertheless considers that there has been an
interference with paragraph 1 of Article 10 of the Convention
(Art. 10-1) the respondent Government contend that such an
interference satisfies the four criteria set out by the Court in the
Sunday Times judgment of 26 April 1979, Series A no. 30), namely that
the interference:

a.      Was prescribed by law;

b.      Had an aim or aims that is or are legitimate under Article 10
para. 2 (Art. 10-2);

c.      Was necessary in a democratic society for that aim or those
aims; and

d.      Was proportionate to that aim or those aims.

In view of the relevant statutory provisions, and their interpretation
by a consistent line of case law, the respondent Government contend
that the interference complained of is prescribed by law and that the
law in question satisfies the requirements of accessibility and
foreseeability imposed by Article 10 (Art. 10).

Any such interference would also pursue a justifiable aim, namely the
prevention of disorder or crime, the protection of the reputation of
rights of others, and the prevention of the disclosure of information
received in confidence.  The prevention of disorder or crime clearly
includes preventing citizens from taking the law into their own hands,
and the withholding of confidential material concerning the
prosecution in criminal proceedings is justifiable on that basis.  It
is relevant in this respect that some of the applicant's comments in
the correspondence submitted to the Commission are of an intemperate
nature.  Furthermore, the respondent Government contend that the
non-disclosure of documents received or prepared by the Crown
prosecuting authorities in connection with the investigation of
prosecution of crime also justifies withholding the post-mortem report
"for the prevention of disorder or crime". Furthermore, if the Crown
prosecuting authorities are to be able to obtain the services of
expert forensic pathologists in cases of murder and other suspicious
deaths, it is necessary that such experts should be able to rely on
their reports being used only for their intended purposes for the
investigation or prosecution of crime, and not being disclosed other
than in connection with those proceedings and otherwise as provided
for by law.  The post-mortem reports are obtained not only for use in
criminal proceedings, but also for the investigation of crime, and
they must therefore contain all relevant information for this purpose
as well as for the purpose of prosecution.

Pathologists should not be inhibited from stating all such information
and their opinions thereon fully and frankly; there might be concern
if their reports were to be disclosed other than on this specific
basis.

In addition, the protection of the reputation or rights of others
includes the protection of the reputation of the deceased as to his
life and past, and of the deceased's associates and the reputation and
rights of the pathologist who prepared the report, for example against
violence or civil suit or harassment.

The Government also submit that such interference was necessary within
the meaning of Article 10 para. 2 (Art. 10-2), in that the national
authorities are entitled, in the exercise of their margin of
discretion, to take the view that there is a pressing social need to
withhold from disclosure documents such as the post-mortem report in
the hands of the Crown prosecuting authorities for the purpose of the
consideration and commencement of criminal proceedings.  Moreover the
aim of this policy is applied in a proportionate manner since the rule
is not a rigid one, and exceptions can be made, for example, to permit
civil actions or an insurance claim to be brought.  No such special
claim arises in this case, and the applicant's allegation that the
refusal to provide him with the post-mortem report is due to his
political activities is categorically denied.

Submissions of the applicant

Domestic law and practice

The applicant submits that, as is illustrated by his application and
the observations of the respondent Government, where the Lord Advocate
opposes the disclosure of documents prepared for the prosecution in
the hands of the prosecution authorities no effective remedy exists in
the law of Scotland to redress his refusal.

Admissibility and merits

Article 25 para. 1 (Art. 25-1)

The applicant may, in view of the facts, and the absence of a remedy
against the matters about which he complains, claim to be a victim of
a breach of Articles 8, 10 and 13 of the Convention (Art. 8,
art. 10, art. 13).

Articles 8 and 10 (Art. 8, art. 10)

The scope of the protection afforded by Article 8 of the Convention
(Art. 8) is broader than that stated by the respondent Government, as
the safeguards go far beyond the measurable features of life, to
include the range of intimacies and understandings peculiar to human
relationships.  Matters of emotional and sentimental value cannot
therefore be excluded.  The notion of family life includes in certain
circumstances extra-marital relationships, and both mothers and
fathers have certain rights to the unborn, as also spouses have rights
in respect of the deceased.  It follows that, as part of the incidence
of natural love and affection, the applicant should be entitled to see
the post-mortem report even if it contained nothing of deemed benefit
to him.  Alternatively, if the report contains matters deemed benefit,
the applicant should also be entitled to see it.

Whatever the position under Article 8 (Art. 8) with regard to
obtaining information concerning persons who are alive, the present
position is entirely different, not least because further medical
reports on living persons may always be obtained.  In the present case
the applicant is the beneficiary of the deceased's estate.

It is noted that the Procurator Fiscal remains willing to deal with
any further questions concerning the post-mortem report or the
circumstances of the death of the applicant's wife and that the
applicant is free to ask whatever further questions he wishes.  This
was confirmed by the Crown Office letter of 3 October 1985.  The
applicant cannot know precisely what is meant by the word "deal".  If
the Procurator Fiscal will answer any questions put on behalf of the
applicant then there would seem to be no justification in refusing him
sight of the report.  The alternative would be for the applicant to
indulge in the proceedings not unlike a guessing game.  If however the
report actually contains  matters about which the respondents are not
prepared to answer questions, then it is essential to know whether
such information includes material as referred to by the Government as
justifying the withholding of information, such as information of
which the deceased's spouse was unaware, and which his spouse during
the subsistence of their marriage did not wish him to know.  As
matters stand, the respondent Government merely indicate that, if
there were such material, it might justify the withholding of
information. Such an approach does not provide basis for a
justification of withholding information in a general way, unless such
material were present.

Even if the report does contain material that the respondent
Government would prefer to remain confidential to themselves, there
may be other details which the applicant has a perfect right to know.
Sensitive parts could be deleted from an edited copy of the report, if
there is any genuine ground of confidentiality at issue.

The applicant, as is clear from the correspondence and other material
which he has submitted, has certain particular concerns with regard to
circumstances of his wife's death.  There is public concern that
certain material aspects of the tragedy have not been revealed in
full.  The applicant believes that more than one person may have been
involved in the murder.  It appears that his wife may have had money
removed from her, prior to her death.  The deceased appears to have
been unnecessarily cut up by the pathologist and concern is expressed
that parts of her body may have been removed. The applicant was not
allowed to see his wife's body until three days after her death, and
then in rushed circumstances.  Serious doubts therefore exist as to
many of the circumstances of the applicant's wife's death.  The
applicant was refused access to his wife's body after the post-mortem,
and was not permitted to have her body taken to his house for one
night prior to her burial.

The reasoning of the respondent Government contains an essential
fallacy, in that they equate a "query", or more accurately a basis of
"concern" with having a factual basis sufficiently sound to enable
questions to be framed which include and exclude all deductable facts.
The post-mortem report may refer to matters incapable of anticipation
by the applicant.  The respondent Government's observations fail to
distinguish in this respect between deduction by the applicant and
guesswork.  Where relevant basic facts are provided it is usually
possible to make reasonable deductions by asking questions themselves
deduced from those facts.  Alternatively, as may be the present
position because the applicant has an incomplete basis for his
questions, he is in effect left to guess.  The fact that the
post-mortem report is "a technical medical document containing
information as to the nature and extent of injuries of what physically
happened to the deceased body" as stated by the respondent Government
does not make it inappropriate to the applicant's concern.

In addition it is completely unfounded to allege that there is any
danger that the applicant might take matters into his own hands. The
reference to the applicant's "intemperate language" in his
correspondence is exaggerated.  To suggest that the prosecution
authorities were concerned or alarmed is spurious.

Furthermore, it is quite spurious to assert that pathologists expect
their investigations and conclusions in a post-mortem report to be
confidential since such reports become a production in murder cases,
and it is usual that they be spoken to in evidence by two
pathologists.  Often pathologists are questioned in detail by the
Crown and are subject to extensive cross-examination by the defence,
and it is notable that, with the exception of evidence of complainers
in rape cases, members of the public and the press are freely admitted
to prosecutions in Scotland.

It is not known whether in this case, the post-mortem report contained
some details which actually might have affected the reputation of the
deceased or others.  Nevertheless, it is difficult to envisage how any
such matter could be accorded such a high degree of confidentiality to
be kept from the spouse.  It is even harder to envisage such matters
that should be kept secret indefinitely from a surviving spouse.  In
these circumstances it is submitted that the interference with the
applicant's rights was not necessary.  There is no valid reason why
the applicant could not have seen the report himself and every reason
why he should.  It is established from the judgment in the Handyside
case (Eur. Court H.R., Handyside judgment of 7 December 1976, Series
A no. 24), that the domestic margin of appreciation goes hand in hand
with the European supervision, which concerns both the aim of the
measure challenged and its necessity.  As such it covers not only the
basic legislation but also the specific decision applying it.  The
arguments of the respondent Government do not provide the basis upon
which such an assessment of the specific decision in this case can be
evaluated.

It is also to be noted from the judgment in the Klass case (Eur. Court
H.R., Klass judgment of 6 September 1978 Series A Volume 28 para. 21)
that an exception to the rights guaranteed by the Convention is to be
narrowly interpreted.  While therefore the national authorities are
allowed a discretion in assessing the extent to which the exigencies
of a situation require the rights of a subject under the Convention to
be restricted, it does not follow that the Commission's examination is
limited to ascertaining whether the State has exercised its
discretion: "reasonably, carefully and in good faith.  Even a
contracting State so acting remains subject to the Court's control as
regards the compatibility of its conduct with the engagement it has
undertaken under the Convention." (Sunday Times Case, supra,
para. 35).

The applicant contends that the criteria applied by the Commission in
X. and Church of Scientology v. Sweden (Application No. 7805/77,
D.R. 16, p. 68) must be applied to examine the restrictions based upon
the applicant's access to the post-mortem report.  The Commission
there held:

"The 'necessity' test cannot be applied in absolute terms, but
requires the assessment of various factors: such factors include the
nature of the right involved, the degree of interference, ie whether
it was proportionate for the legitimate aim pursued, the nature of the
public interest which requires protection in the circumstances of the
case."

The application of these principles in the present case reveals that
the rights protected under Article 8 (Art. 8) are both intimate and
precious while the information sought under Article 10 (Art. 10)
is of high personal value to the applicant at least.  The degree of
interference on the part of the prosecuting authorities is excessive
and perhaps pointless, having regard to their willingness to answer
questions. Whilst it is conceded that there are circumstances where a
high public interest may exist in relation to certain documents
obtained by a prosecuting authority, the present request is not
amongst them, or has not been shown to be by the respondent
Government.

Part of the notion of a democratic society referred to in Articles 8
and 10 of the Convention (Art. 8, art. 10) is the concept of the rule
of law. In view of the respondent Government's arguments, no effective
legal remedy exists against the refusal of the Lord Advocate to
release prosecution documents.  It is submitted that such a remedy is
required if the full sense of the rule of law is to be achieved,
particularly in view of the Court's judgment in the Klass case (supra,
para. 25) where the Court held:

"The rule of law implies inter alia that an interference by the
executive authorities with an individual's rights should be subject to
an effective control which should normally be assured by the
judiciary, at least in the last resort, judicial control offering the
best guarantees of independence, impartiality and a proper procedure."

If the prosecuting authorities were justified in refusing the
applicant either access to his deceased wife's corpse for three days,
or a copy of the post-mortem report, which is denied, it is submitted
that they had a duty in the terms of Article 10 (Art. 10) to advise the
applicant that he could have a private post-mortem arranged.  This
obligation arises by analogy with the Klass case where the authorities
were found to have a duty to notify the persons under surveillance of
that fact as soon as that became practicable.

Article 13 (Art. 13)

The respondent Government are also in breach of this provision, since
they concede that no effective remedy exists in the law of Scotland to
redress the Lord Advocate's refusal to authorise a disclosure of
documents prepared for the prosecution which are in the hands of the
prosecuting authorities.  The applicant relies in this
respect on the reports of the Commission in the case of Silver and
others (Comm. Report of 11.10.80, paras. 443-452) and in the Sporrong
and Lönnroth case (Comm. Report of 8.10.80, paras. 154-165).

Article 18 (Art. 18)

The respondent Government appear to be applying a policy decision
relating to all prosecution documents and materials to the present
application for the sight of the post-mortem report.  They seek to
apply restrictions and to preserve their policy, although they have no
substantial objection to disclosure in the applicant's individual
case.  In reality, they have no objection to this applicant becoming
appraised of the whole circumstances of his deceased wife's death as
is demonstrated by their willingness and continued willingness to
answer his questions.  Nevertheless they arbitrarily refuse him access
to the post-mortem report.

The applicant therefore contends that the application is admissible
and discloses breaches of Articles 8, 10, 13 and 18 of the Convention
(Art. 8, art. 10, art. 13, art. 18).

THE LAW

1.      The applicant complains that the refusal of the Scottish
authorities to provide him with a copy of the pathologist's
post-mortem report of his murdered wife is a breach of Article 10 of
the Convention (Art. 10), which provides:

"1.  Everyone has the right to freedom of expression.  This right
shall include freedom to hold opinions and to receive and impart
information and ideas without interference by public authority and
regardless of frontiers.  This Article (Art. 10) shall not prevent
States from requiring the licensing of broadcasting, television or
cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary
in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder
or crime, for the protection of health or morals, for the protection
of the reputation or rights of others, for preventing the disclosure
of information received in confidence, or for maintaining the
authority and impartiality of the judiciary."

The post-mortem report is a technical medical document which is the
property of the Crown and is not normally released to the public.  The
applicant nevertheless wishes to receive a copy of the report and
contends that Article 10 (Art. 10) confers upon him a right to require
the production to him of such a document by the Government.

In this regard the Commission recalls the previous occasions upon
which it has considered what sorts of information are covered by the
freedom to receive information referred to in Article 10 (Art. 10).
In its decision on the admissibility of Dec. No. 8383/78, X. v. the
Federal Republic of Germany, (D.R. 17 p. 227) the Commission did not
exclude the possibility that:

" ... the right to receive information may under certain circumstances
include a right of access by the interested person to documents which,
although not generally accessible, are of particular importance to his
own position ... "

The Commission concluded however that there was no question of a
denial of such specific information in that case.

In its decision on the admissibility of Dec. No. 8878/80, X. v.
Ireland (7.12.81 unpublished), the Commission recognised that:

"Although ...  Article 10 (Art. 10) is primarily intended to guarantee
access to general sources of information, it cannot be excluded that
in certain circumstances, it includes a right of access to documents
which are not generally accessible. ...  The Commission is not of the
opinion, however, that Article 10 (Art. 10) imposes an obligation on
state authorities to publish such information, as opposed to
facilitating access to them."

However, the Commission is not required to decide the extent of the
right conferred upon the applicant by Article 10 para. 1 (Art. 10-1)
as regards the post-mortem report, since it is clear that he has in
fact substantially received the information which he claims is denied
to him.  Certain details of the circumstances of his wife's death were
provided to his solicitors by the Procurator Fiscal at a meeting on
9 August 1984 following a request by them for a copy of the full report.
In response to a further request to the Lord Advocate at the Crown
Office on behalf of the applicant for a copy of the report, the Lord
Advocate confirmed that it was not the practice in any case to provide
the victim's family with a copy of the post-mortem report.  However,
in addition to the information already made available to the
applicant, the Lord Advocate confirmed that the Procurator Fiscal
would be happy to discuss any other outstanding matters on which
information was sought with the applicant's solicitors.  Further
information was provided at another meeting between the applicant's
representative and the Procurator Fiscal on 4 March 1985 when the
applicant's solicitors put certain further specific questions to the
Procurator Fiscal concerning the injuries suffered by the applicant's
wife, details of the circumstances of her death and the behaviour of
the other individuals involved prior to the murder.  The Procurator
Fiscal provided full written answers to all these questions, although
he maintained his refusal of access to the post-mortem report itself.

Moreover the Procurator Fiscal has confirmed that the applicant may
seek answers to any further queries he might have concerning the
circumstances of his wife's death in the same way if any question
remains outstanding.

In these circumstances the Commission considers it appears that the
applicant has received the information he seeks.  The Convention
cannot in these circumstances be interpreted to guarantee a
right to receive information in a particular form, and the applicant
has no right to receive a copy of the post-mortem report itself since
he has in any event received, or could apparently receive if he
formulated a suitable request, the substantive information sought by
means of the written answers to his questions.  In this respect the
applicant has not indicated, what, if any, further information he
requires and has not received.

It follows therefore that there has been no interference with the
applicant's access to information and that his complaints in this
respect are manifestly ill-founded within the meaning of Article 27
para. 2 of the Convention (Art. 27-2).

2.      The applicant also complains that the refusal of the
authorities to allow him access to the post-mortem report on his wife
is an unjustified interference with his right to respect for his
family life which is protected by Article 8 of the Convention
(Art. 8), which provides:

"1.     Everyone has the right to respect for his private and family
life, his home and his correspondence.

2.      There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."

The respondent Government contend that no issue arises under this
provision, or that any interference was justified.

The Commission considers that Article 8 of the Convention (Art. 8)
does not provide an unlimited right for members of family to have
access to official reports or other court documents which are prepared
by the public authorities as a result of the non-natural death of a
family member.

In the present case the applicant has been informed of the substantive
contents of the post-mortem report.  His representatives have been
able to question the authorities as to its contents and the
opportunity to put further questions is open to the applicant.

The domestic authorities have thereby shown a flexible response to the
particular circumstances of the case and have revealed the substance
of the report to the applicant.  The applicant would wish to see the
report itself, but in view of the purpose for which it was prepared
this has been refused.  The purpose in question illustrates the scope
of the report and the reasons for its preparation.  It is not in the
nature of a private medical opinion, prepared on a patient in the
context of medical treatment or diagnosis, but is intended to serve
the purpose of the investigation of crime as well as providing
evidence for the public prosecution of an offender.

In these circumstances the Commission finds that the fact that the
actual report has not been shown to the applicant shows no lack of
respect for his family life and it follows that this aspect of the
applicant's complaints is manifestly ill-founded within the meaning of
Article 27 para. 2 of the Convention (Art. 27-2).

3.      The applicant also complains that he was denied a remedy as
required by Article 13 of the Convention (Art. 13) for his complaints.
Article 13 (Art. 13) provides:

"Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity."

However, the Commission recalls that it has held that the remedy
referred to in Article 13 (Art. 13) is only required where the
applicant can make an arguable claim to be the victim of a violation
of the Convention.  In the present case the Commission has found that
there was no interference with the applicant's right to respect for
his family life or his right to receive information because he has
been informed in substance of the contents of the post-mortem report
and the opportunity to ask further questions about it remains open to
him.

In these circumstances the applicant cannot make an arguable claim to
be a victim of a violation of the Convention and that Article 13
(Art. 13) has no application in the present case.

It follows that this aspect of the applicant's complaint is manifestly
ill-founded within the meaning of Article 27 para. 2 of the
Convention (Art. 27-2).

4.      Finally the applicant complained in his observations filed on
21 January 1986 that he was denied access to his wife's body after her
death and was not permitted to mourn her at his home prior to her
burial.  However the Commission is prevented from considering these
complaints by the terms of Article 26 of the Convention (Art. 26)
which provides as follows:

"The Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law, and within a period of six months from the
date on which the final decision was taken."

The present complaint was introduced on 21 January 1986.  In the
absence of any remedy for the matter complained of, the six month
period referred to in Article 26 (Art. 26) runs from the date of the
event complained of.  However the event in question occurred in
April 1984, that is more than six months before the applicant lodged a
complaint about this issue with the Commission.

It follows that this aspect of his complaints has been submitted out
of time and is inadmissible within the meaning of Article 27 para. 3
of the Convention (Art. 27-3).

For these reasons, the Commission,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission              President of the Commission

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