Written by Tobias Raab* and originally published by ECPMF.EU
On 4 December 2015, the European Court of Human Rights (ECtHR) decided that an editor is entitled to claim to be a victim of a violation of the European Convention of Human Rights (ECHR), even if he is unable to allege that he had been the subject of concrete measures of surveillance or telecommunication interception (Application no. 47143/06 ).
The plaintiff, Roman Zakharov, editor of a publishing company and an aviation magazine as well as chairperson of an NGO monitoring the state of freedom of press in Russia, had taken legal actions against three mobile network operators, claiming that he had been violated in his right to privacy of his communication. His claims however, had been dismissed in December 2005 by the District Court of St Petersburg, as the Court had not been convinced that the mobile network operators had transmitted protected information to anyone unauthorised or permitted any unauthorised interception of his communications.
Later in his appeal, the plaintiff stated that the Court had not accepted as evidence two judicial orders that retrospectively authorised the interception of telephone communication. Another document that was not accepted contained an addendum to the service provider contract, which had been issued by one of the network operators. It informed the user that the operator might stop his service and send any collected data to law-enforcement agencies, if the user’s number got used for transmitting terror threats. The plaintiff argued that these documents proved the operators’ and agencies’ ability to intercept communication without prior judicial decision.
In April 2006, the St Petersburg City Court decided that the plaintiff had not proved an interception of his telephone communication nor that he had shown a danger of a violation of his right to the privacy of his communication. The Court stated that it had also been lawful to not admit the two judicial orders as evidence, because they would have been irrelevant to the case. Even though the Appeal Court did admit the addendum to the contract as evidence, it found its content was also not relevant to the case.
After the decision, the plaintiff had been given documents from an NGO (named “Civilian Control”), showing that they had asked the Prosecutor General’s office to inspect the orders of the Ministry of Communications regarding the interception of communications in order to verify their compatibility with federal laws. Later on, an official from the Prosecutor General’s office called “Civilian Control” and demanded copies of the unpublished attachments, saying they had been unable to obtain them from the Ministry. Then the Prosecutor General’s office refused to carry out the inspection.
The European Court of Human Rights has now decided that the plaintiff was entitled to claim to be a victim of a violation of the European Convention on Human Rights. The Court analysed the complete surveillance system and found it was justified in examining the relevant legislation in consideration of an abstract violation of the plaintiff’s rights, rather than a specific violation, as surveillance methods have a secret nature and affect all users of mobile telephone communication. As the Russian system did not give any effective remedy to someone who suspected to be subject to secret surveillance, the Court stated that the existence of the contested legislation already interfered with the plaintiff’s rights under Article 8 of the Convention and that he did not have to prove that his own communication was being intercepted. Even though surveillance might be used in order to protect the inner security of the State and the rights of individuals, the Court underlined that a system of mass surveillance could also be used to undermine or hurt democracy by pretending to defend it. In view of those risks, the Court requested adequate and effective guarantees against abuse.
The Court came to the conclusion that the Russian Law did not provide those guarantees which was even more important as secret services and police have direct technical access to all mobile communications in Russia. The ECtHR especially criticised shortcomings in the supervision of the interception, its duration, the circumstances under which it should be stopped or continued and the authorisation for saving and deleting the intercepted information. The Court also found it not to be effective enough, that only those persons had the right to challenge the interception of communication, who could prove that they had specifically been affected, as it is impossible to submit such proof when there is no notification system at all.
With its decision, the Court reinforced its approach in the Kennedy Doctrine, when it first accepted the principle that legislation can be challenged if it is broad enough to affect citizens due to their membership to a group targeted by the law and if there is no remedy offered to affected individuals by national law. As the Court decided, those conditions were to be found in the present case.
The Court also clarified Article 8 paragraph 2 of the Convention in the present decision, which shows the legitimate condition under which law can allow data processes. The Court analysed if the Russian surveillance framework was to be justified by considering the balance between legality and necessity. Even though there will always be a tension between the aim to reach a high level of security and the need to grant as much freedom as possible, the Court stated that there had to be adequate guarantees against abuse. To reach this goal, judges must be in position to verify or negate the existence of any understandable suspicion against a citizen and assess proportionality of surveillance, rather than just being somehow involved. In terms of notifications, the Court followed its jurisprudence, affirming a right to be informed. In this way, surveillance frameworks have to make sure that there can be an independent ex post control, so that violations of individual’s rights can be examined retrospectively. Therefore, there is a need to be notified.
The Court made clear, that the Russian remedies did not guarantee human rights as they were undermining the plaintiff’s rights by only granting him judicial protection if he could prove the relevant communication interceptions.
*Tobias Raab works as freelancer for the Institute of European Media Law, Saarbrücken. Tags: