CS406: Information Security

68. Since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, (…).

79. The foregoing considerations disclose that, at the very least, in its present state the law in England and Wales governing interception of communications for police purposes is somewhat obscure and open to differing interpretations. The Court would be usurping the function of the national courts were it to attempt to make an authoritative statement on such issues of domestic law (see, mutatis mutandis, the Deweer judgment of 27 February 1980, Series A no. 35, p. 28, in fine, and the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 30, fourth sub-paragraph). The Court is, however, required under the Convention to determine whether, for the purposes of paragraph 2 of Article 8 (art. 8-2), the relevant law lays down with reasonable clarity the essential elements of the authorities’ powers in this domain.

Detailed procedures concerning interception of communications on behalf of the police in England and Wales do exist (see paragraphs 42-49, 51-52 and 54-55 above). What is more, published statistics show the efficacy of those procedures in keeping the number of warrants granted relatively low, especially when compared with the rising number of indictable crimes committed and telephones installed (see paragraph 53 above). The public have been made aware of the applicable arrangements and principles through publication of the Birkett report and the White Paper and through statements by responsible Ministers in Parliament (see paragraphs 21, 37-38, 41, 43 and 54 above).

Nonetheless, on the evidence before the Court, it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach a similar conclusion to that of the Commission. In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.

(iii) Conclusion

80. In sum, as far as interception of communications is concerned, the interferences with the applicant’s right under Article 8 (art. 8) to respect for his private life and correspondence (see paragraph 64 above) were not "in accordance with the law".

83. The process known as "metering" involves the use of a device (a meter check printer) which registers the numbers dialled on a particular telephone and the time and duration of each call (see paragraph 56 above). In making such records, the Post Office - now British Telecommunications - makes use only of signals sent to itself as the provider of the telephone service and does not monitor or intercept telephone conversations at all. From this, the Government drew the conclusion that metering, in contrast to interception of communications, does not entail interference with any right guaranteed by Article 8 (art. 8).

87. Section 80 of the Post Office Act 1969 has never been applied so as to "require" the Post Office, pursuant to a warrant of the Secretary of State, to make available to the police in connection with the investigation of crime information obtained from metering. On the other hand, no rule of domestic law makes it unlawful for the Post Office voluntarily to comply with a request from the police to make and supply records of metering (see paragraph 56 above). The practice described above, including the limitative conditions as to when the information may be provided, has been made public in answer to parliamentary questions (ibid.). However, on the evidence adduced before the Court, apart from the simple absence of prohibition, there would appear to be no legal rules concerning the scope and manner of exercise of the discretion enjoyed by the public authorities. Consequently, although lawful in terms of domestic law, the interference resulting from the existence of the practice in question was not "in accordance with the law", within the meaning of paragraph 2 of Article 8 (art. 8-2) (see paragraphs 66 to 68 above).

35. Above all, the system does not for the time being afford adequate safeguards against various possible abuses. For example, the categories of people liable to have their telephones tapped by judicial order and the nature of the offences which may give rise to such an order are nowhere defined. Nothing obliges a judge to set a limit on the duration of telephone tapping. Similarly unspecified are the procedure for drawing up the summary reports containing intercepted conversations; the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge (who can hardly verify the number and length of the original tapes on the spot) and by the defence; and the circumstances in which recordings may or must be erased or the tapes be destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court. The information provided by the Government on these various points shows at best the existence of a practice, but a practice lacking the necessary regulatory control in the absence of legislation or case-law.

36. In short, French law, written and unwritten, does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. This was truer still at the material time, so that Mr Kruslin did not enjoy the minimum degree of protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment previously cited, Series A no. 82, p. 36, § 79). There has therefore been a breach of Article 8 (art. 8) of the Convention.

All five applicants claim that Article 10 para. 2 of the Basic Law (Grundgesetz) and a statute enacted in pursuance of that provision, namely the Act of 13 August 1968 on Restrictions on the Secrecy of the Mail, Post and Telecommunications (.., hereinafter referred to as "the G 10"), are contrary to the Convention.

They do not dispute that the State has the right to have recourse to the surveillance measures contemplated by the legislation; they challenge this legislation in that it permits those measures without obliging the authorities in every case to notify the persons concerned after the event, and in that it excludes any remedy before the courts against the ordering and execution of such measures.

Their application is directed against the legislation as modified and interpreted by the Federal Constitutional Court (Bundesverfassungsgericht).

33. (…) Article 25 (art. 25) [now art. 34, mh] does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment.

34. (…) The question arises in the present proceedings whether an individual is to be deprived of the opportunity of lodging an application with the Commission because, owing to the secrecy of the measures objected to, he cannot point to any concrete measure specifically affecting him. (…)

36. The Court points out that where a State institutes secret surveillance the existence of which remains unknown to the persons being controlled, with the effect that the surveillance remains unchallengeable, Article 8 (art. 8) could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8 (art. 8), or even to be deprived of the right granted by that Article (art. 8), without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions. (…) The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. (…)

38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to "(claim) to be the victim of a violation "of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance.

(1) Secrecy of the mail, post and telecommunications shall be inviolable.

(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that legal remedy through the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.

41. The first matter to be decided is whether and, if so, in what respect the contested legislation, in permitting the above-mentioned measures of surveillance, constitutes an interference with the exercise of the right guaranteed to the applicants under Article 8 para. 1 (art. 8-1). (…)

Furthermore, in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an "interference by a public authority" with the exercise of the applicants' right to respect for private and family life and for correspondence.

42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2).

43. In order for the "interference" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been "in accordance with the law".

This requirement is fulfilled in the present case since the "interference "results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above).

In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself".

45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against "imminent dangers" threatening "the free democratic constitutional order", "the existence or security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic or the security of "the troops of one of the Three Powers stationed in the Land of Berlin", the responsible authorities may authorise the restrictions referred to above (see paragraph 17)".

46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant.

47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State.

The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse.

49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (…)

Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate.

51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. (…)

52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained.(…)

53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people’s elected representatives, namely, the Parliamentary Board and the G 10 Commission. (…)

54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a "form of political control", inadequate in comparison with the principle of judicial control which ought to prevail.

55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge.

Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual’s rights.

In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 para. 2 (art. 8-2), are not to be exceeded.

One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). 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.

56. The Court considers that, in a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge.

Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society.

58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases.

The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures.

Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents.

In the Court’s view, in so far as the "interference" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the "interference".

For these reasons the Court

1. holds unanimously that it has jurisdiction to rule on the question whether the applicants can claim to be victims within the meaning of Article 25 (art. 25) of the Convention;

2. holds unanimously that the applicants can claim to be victims within the meaning of the aforesaid Article (art. 25);

3. holds unanimously that there has been no breach of Article 8, Article 13 or Article 6 (art. 8, art. 13, art. 6) of the Convention.

95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: