sou · GYB3103 · 2010-12-23 00:00:00 — the discretion established by law.16 While these need not be written into the text of the law itself, the law must at least set up the con- ditions and procedures for the interference.17 There is thus an over- lap between the law requirements, the requirement of necessity in a democratic society and the requirement of effective remedies in Article 13.18 For example, the degree of foreseeability required before a measure taken by the state in dealing with surveillance could be said to satisfy the requirements of accordance with the law can also serve as a safeguard against abuse of power (which re- lates to the "necessity" of the measure. Sometimes the Court chooses to focus upon the safeguards under the necessity requirement.19 This may be done where there is room to doubt whether the func- tioning of the safeguards in practice corresponds to how they look on paper. On most occasions, however, the Court seems to find it easier to make a finding that the state has failed to comply with the law requirement. The requirements of foreseeability and accessibility will vary according to the content of the law, the field it is designed to cover and the number and status of the addressees. In Groppera Radio v. , for example, the law was an ordinance directed to radio companies which referred to technical provisions of certain inter- national treaties in the field of telecommunications. The Court nonetheless considered that the addressees had, or ought to have had, access to the expert help necessary to understand its content.20 In Rekvenyi v. one of the questions was whether a consti- tutional provision prohibiting the to engage in political activity was sufficiently clear to be foreseeable in the absence of imple- menting norms. The Court considered that it was.21 In the area of the criminal law and criminal procedure, other cases where the adressees are ordinary citizens and the intervention in individual rights is serious, the potential for abuse of power is greater, and the Convention organs have occasionally been more demanding.22 16See, e.g., Silver and others v. UK, paras 88–89. 17Klass v. FRG, No. 5029/71, Report of 9 1977 para. Kruslin v. , , A/176-A, para. 35, Huvig v. , , A/176-B, para. 18See Ruiz, 1997, pp. 183–184. 19See S and Marper v. UK, Nos 30562/04 and 30566/04, , and the Bykov case considered below. I consider that this is a better approach than trying to fit in safeguards into the concept of accordance with the law which the Court has taken before in a number of earlier cases such as Rotaru v. , No. 28341/95, 4 2000. 22Compare v. UK, para. 49 and Maestri v. , No. 39748/98 17 February 2004 with Cantoni v. , . The Court is, however, aware of the difficulties of formulating laws. In Gorzelik and Others v. ,23 the Court stated that it is a logical consequence of the principle that laws must be of general application that the wording of statutes is not always precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice It must also be borne in mind that, however clearly drafted a legal pro- vision may be, its application involves an inevitable element of judicial interpretation, since there will always be a need for clari- fication of doubtful points and for adaptation to particular circum- stances. A of doubt in relation to borderline facts does not by itself make a legal provision unforeseeable in its application. does the mere fact that such a provision is capable of more than one construction mean that it fails to meet the requirement of fore- seeability for the purposes of the Convention. The role of adjudi- cation vested in the courts is precisely to dissipate such inter- pretational doubts as remain, taking into account the changes in everyday practice.24 Beyond the references to foreseeability and the need to frame laws and elaborate safeguards to avoid misuse of power, the Court has not elaborated in any detail what underlying values are protected by the accordance with the law requirement. The requirement is often seen as an expression of the rule of law. However, insofar as it goes beyond the idea of rule by law, the content of the rule of law concept is the object of dispute. Basically, it seems to mean what the writer wishes it to mean and as such, it is of limited theo- retical value.25 Behind the idea of statutory law I would say are three values, foreseeability/stability, democratic legitimacy and institutional competence. As regards the first of these, the principle of norm hierarchy, expressed in Swedish law by RF 8:18, is that statutes can only be amended by statutes. A statutory regulation is thus both more stable and more transparent than regulation by means of subordinate legislation. As regards the second of these, need be said. The idea of democracy is the steering principle of main- stream Western political organization for almost 100 years (and of huge influence in Western political thinking long before that). 44158/98, 17 February 2004. 24Ibid, at paras 64-65 (references omitted). The third value relates to the time and expertise which the parlia- ment has at its disposal to devise appropriate general rules, and the completeness of the debate (taking into account all the relevant factors) which accompanies, or should accompany, discussion of legislative proposals. The Court has in the past paid insufficient attention to the value of regulation by statute law when it has con- sidered the rule of law concept. There are presumably two reasons for this. First, as noted above, the Court accepts that general rules inevitably require judge-made law to interpret and develop them. Moreover, the UK and are common law states which accept, indeed welcome, that a large area of the law is judge made. One cannot invalidate large parts of the legal systems of two of the founding members of . Second, in every European state, whether it has a parliamentary or presidential system of government, there is a very large amount of non-parliamentary produced legislation which is based either on delegated powers from the parliament or primary legislative authority for the government by virtue of the constitution.26 However, as shown below, the Court, in the area of secret surveillance, has now begun to insist on statutory regulation of the area as a whole. 5 What is an interference with Article 8? 5.1The content of Article 8 Article 8 guarantees four separate rights although there is a con- siderable amount of overlap between them. The same state measure can interfere in both e.g. family and private life or home and correspondence.27 Family life is not directly relevant to the present study, but the other three rights are. Article 8 refers to the right to respect for the listed rights. This means that not every measure affecting a listed right is an interference with that right.28 I should also stress that the fact that something is found to interfere with (or infringe) one of the Article 8 rights does not mean that it violates the article, simply that the infringement must be justified. 26Cf RF 813. 27One can argue that where the same measure constitutes an interference in both private life and the home it should be even more closely scrutinized. Ovey and , 2006, p. 218 the fact that [the rights] are grouped together in the same article strengthens the protection given by that article, because each right is reinforced by its context. 28Harris, et al. The home can extend to business premises under certain circum- stances.29 The of a listening device in the home30, or using an agent or informer equipped with a listening device (participatory recording or wearing a wire)31 in the home is clearly an inter- with Article 8(1). The home has been held to include a garage owned by the target in another locality than his home and another persons home which the target was visiting.32 It seems fairly clear on the basis of this case law that even other types of listening devices, capable of picking up sounds at a distance, which are not physically placed in the home but are directed at it, will con- stitute an interference with the home.33 Similarly, it may safely be said that the directing of visual surveillance against a person who is, at the time, in his/her home will be an interference with 29Niemietz v. , , A/251-B, paras 27–33. The Court also said in this case (which concerned search of a lawyers office and seizure of documents) that private life can similarly include business activities. This approach is obviously sensible. The internet and developments in communication technology mean that many people can as easily work in their homes. The Court has confirmed this approach in a number of sub- sequent cases, e.g. v. , No. 41604/98, . In Stés and others v. , No. 37971/97, , the Court went so far as to apply the protection of the domicile to the premises of legal persons on its dynamic interpretation of the Convention, the Court considers that the time has come to hold that in certain circum- stances the rights guaranteed by Article 8 of the Convention may be construed as including the right to respect for a companys registered office, branches or other business premises (at para. 30See the earlier Commission cases of Redgrave v. UK, No. 20271/92, decision inadmissible of and Govell v. UK, No. 27237/95, Report of 14 January 1998, v. UK, No. 35394/97, ECHR 2000-V, paras 26-28 Chalkley v. UK, No. 63831/00, 2 2003. 31Heglas v. , No. 5935/02, 1 2007 (inadequacy of legal framework at the time regulating body-mounted listening devices and metering data), Bykov v. , No. 4378/02, 21 January 2009. 32See respectively Hewitson v. UK, No. 50015/99, 27 2003 and v. UK, No. 48521/99, 16 2002. See also Vetter v.France, No. 59842/00, 31 2005 (place- ment of microphones by in the home of a person the target was visiting). On the other hand, in v. , No. 10231/07, , an actors dressing room was not regarded as part of his home. In Bykov the government argued that the guest house where the participatory bugging took place (see further below) was not part of the appli- cants home. The Court stated simply that the applicants right to private life had been interfered with. the US cases concerning scanning from outside with thermal cameras in order to pick up unnaturally high heat emissions, which might indicate the presence of sodium lighting, used in growing marijuana plants, US v. , 62 F. 3rd 1325 (11th . 1994) and US v. , 9630333v2 (9th . However, the US constitution 4th Amendment protects primarily against warrantless searches, and in both cases, this practice was found not to constitute such a search. Article 8(1).34 However, as discussed below, such measures will, in most situations, also constitute an interference with private life. Correspondence includes not simply mail and telephone usage35, but also telegraphs, faxes and e-mail and internet usage.36 Correspon- dence is not qualified by private life either, and includes therefore all sorts of correspondence, including that sent to and from the work- place.37 In v. UK the Court concluded that phone calls made on a closed telecommunications network, on business premises, fell within the notions of private life (and correspondence) and so could be protected from interception by Article 8.38 The case concerned a senior officer who had been passed over for promotion on a number of occasions and who had brought proceedings before an industrial tribunal alleging sexual discrimination. She later suspected that both her work and home telephone had been tapped in an attempt to obtain information useful against her in these proceedings. The respondent state admitted that her office telephone had been tapped. The Court noted that had received no warning that her office telephone would be subject to interception, and that her reasonable expectation of privacy was reinforced by the facts that she had sole use of her office, that she had two telephones, one of which was specifically designated for her private use and that her employer had assured her in a memorandum that she could use her office telephones for the purposes of preparing her sex discrimination case. A similar approach was taken in Amann v. where the applicant, a businessman, had calls intercepted from his business premises39 and in v. UK which involved monitoring of a public employees telephones and internet access at work.40 Like the situation in , the Court placed in emphasis on the applicants reasonable expectation of privacy: she had not been informed that her internet etc. usage could be monitored. 34Naismith, 1996, at p. See further the Courts case law regarding photographing a per- son outside of the home discussed below. 35The Convention organs also accepted early on that the tapping of telephones was an inter- with correspondence. See Klass v. FRG, , A/28, para. 36See PG and JH v. UK, No. 44787/98, , para. 42, Copeland v. UK, No. 62617/00, and v. UK, No 58243/00, 1 2008, below. As regards the issue of access to data located on a persons computer, or on a server, and not being transmitted, see below. 37PG and JH, ibid. and Niemietz, para 32. 38Halford v. UK, 25 1997, paras 42–46. 3916 February, 2000, discussed further below. Still, it is clear that the Court considers that correspondence can be carried out outside of the home, and it must also be pro- tected outside of the home.41 In addition I can note here that the protection of correspondence has implications for associations. Whereas an association as such (as compared to its members) may not have a right to private life, it does have the right to correspon- dence.42 As regards obtaining information on the circle of persons or telecommunications addresses with which the target communicates (so called metering information or telecommunications data), the Court held as far back as 1986 in v. UK that this is an interference with private life.43 It should be noted that the type of data available from metering has changed considerably, with the advent of mobile phones and the internet. Mobile phones now give location data (considered below) and monitoring internet surfing gives information on the websites visited. I discuss later the type and degree of regulation required for accessing this data. The Court has moreover stated that the mere interception of tele- phone calls in itself constitutes an interference with private life.44 The fact that no use is made of the recordings is irrelevant. The Court has also stated, in connection with strategic surveillance (below) that the mere existence of this constitutes an interference with private life/correspondence of the affected persons (who may be a large part of the population). Similarly, one can argue that the data retention requirement for telecommunications traffic intro- duced by EC directive in itself constitutes an interference with private life.45 The fact that a person knows that records of his or her internet surfing will now be made available to the , and not simply be kept by his/her service provider for purposes, may well have an effect on the sites which they visit. 41The advent of mobile phones and laptop computers anyway makes it unrealistic to draw a distinction between telephone tapping and mail interception inside and outside the home. 42Association for European Integration and Human Rights and Ekimdzhiev v. , No 62540/00, 28 2007 (Association could claim to be directly affected by a law which allows the use of secret surveillance measures, breach of Article 8). 43Malone v. UK, paras 83-88. has also taken the position that this information should be confidential, except where it is necessary to reveal it for reasons of national security, law enforcement etc. Protection of personal data in the area of tele- communications services, with particular reference to telephone services, Recommendation no. R(95)4, para. 44Kopp v. , 25 1998, para. 37, see below. 45See Breyer, 2005. See further the discussion of why private persons access to teledata does not raise the same sort of private life issues below in section 5.3. There are three issues which require a more detailed treatment as far as home and correspondence are concerned. The first issue is when the state facilitates participatory audio surveillance. 5.2.2 Participatory audio surveillance The regulation of this area has varied from state to state depending inter alia on whether the consent of all participants in a conversation is necessary before a tort or crime of revealing confidences is committed, or whether it is enough that one participant consents.46 Prior to the Bykov case (dealt with below, in section 5.2.3), the leading Convention case on the issue was A. v. . In this case, an informer had notified a high ranking officer that he had been hired by the applicant, A., to kill someone. He offered to make a telephone call to the applicant and to record the conversation. The policeman agreed. The call was made in the policemans office and recorded with a tape recorder. The Court of Cassation had ruled in 1989, concerning a similar case, that only a judge could authorise the recording of a telephone conversation. The could not do this by themselves during a preliminary investigation. The French government accordingly conceded that there was no basis under French law for the recording. The Court thus predictably found that the recording was not in accordance with the law. The point of interest is, however, that the Court considered that, where the state facilitates this, a recording of a conversation by one private party was an interference with another partys right to correspondence. The approach was confirmed in the later case of M.M. v. Netherlands.47 This case concerned the recording of a persons incoming, rather than outgoing, calls. A distinction can be drawn between simply facilitating the recording of incoming calls and the situation where the state could be said to have contributed to the making of incriminating statements, by encouraging one participant (A) in the conversation to ring up the other (B), and provided A with equipment to record any incriminating statements made by B.48 46For a brief comparison of the laws of five states in this respect see and Bevers, 1996, pp. 157–170. In , the crime of eavesdropping can only be committed by a person not party to the conversation (Criminal Code, Chapter 4, section 9a). 39339/98, . See also the Bykov and Heglas cases, op. cit. 48See the dissenting judgment by in the case and the separate judgment by in the later case of v.the , Nos 38258/03 25 October 2007 See also two decisions of the Swedish ombudsman (JO 1996 dnr 1953-1995 and JO The majority of the Court, however, seemed to make no such distinction, and one must assume that the majority does not regard it as a basis for justifying leaving unregulated the facilitating of recording of incoming calls. By way of comment, nowadays, the easy availability of equipment capable of making good quality recordings of telephone conversations would seem to render unnecessary any involvement other than simply advising a person to record any threatening etc. calls. However, insofar as the consider it useful to be able to facilitate in any way the recording of calls it seems clear that the Convention requires legal authority to do this. One question which falls under this heading is whether it is necessary to have positive statutory authorization before giving the access to a recorded telephone conversation between an indi- vidual and the emergency services (SOS Alarm). On the one hand, the person is, or should be, aware that such a conversation will be recorded. On the other, the recording is made for a specific pur- pose (to facilitate quick identification of exactly what the emergency is, and where it is occurring). In this respect, the situation resembles the situation of obtaining location or other teledata information from a phone operator (considered below in section 5.3.4). 5.2.3 Infiltration of the home The second issue concerns whether sending an informer or an under- cover agent into a persons home but without wiring them to make an audio or visual recording nonetheless constitutes an inter- with that persons home. As shown below, private life ex- tends outside of the home. Thus infiltration even outside the home can raise Convention issues. However, the arguments that the Con- vention requires regulation of infiltration are at their strongest when it involves entry into the suspects, or a third partys, home. One question here is whether the Courts judgment in the Bykov case constitutes a new approach. Previously, in v. ,49 the Court did not consider that the use of an undercover officer to approach the applicant to buy drugs was an interference with the 1997/98:118) which criticised state employees for recording their conversations with (abu- sive) private individuals without informing them of this. The ombudsman considered this breached the prescribed by law requirement in Article 8. 12433/86, 15 1992. The Court appeared to take an approach similar to that taken by the US Supreme Court,50 namely that a person engaged in criminal activity (X) implicitly waives his or her privacy when talking to another person (Y) as X should be aware that Y may be an informer or an agent.51 Although the use of informers and undercover agents has arisen several times before the Court since the case, to my knowledge, the issue of the use of infiltrators has arisen, but the question has always concerned the Article 6 issue (fairness of trial) rather than the Article 8 issue of whether the activity in itself constituted an interference with the home and/or private life. For example, in Ramanauskas v. ,52 a Grand Chamber case dealing with agents provocateur, the Article 8 issue did not arise. There was an explicit statutory basis for the use of operational simulation models and the authorization procedure required the permission of the Prosecutor General or his/her deputy. I think that the following points should be made. I do not think too much weight should be placed on . The case was in 1992 and the Court treated the issue perfunctorily. Organized crime activities have apparently increased in European states since this time, and it is reasonable to assume that the use of informants and under- cover agents to infiltrate organized crime has also increased. The problems involved in the use of informants and undercover agents have also become better known. For example, an infiltrator can be given access to premises by criminals unaware that s/he is working for the . When unobserved, s/he is in the position to secure the same goals as an operation involving the use of traditional coercive open or measures (entry onto premises, search, seizure). Such measures, the Court has emphasized many times, must be under judicial control. However, by outsourcing these to an infiltrator, or by using an undercover agent, the way is opened to avoid existing safeguards. As regards the link between surveillance and infiltration, a link which was present in the Bykov case, it is possible to make a dis- tinction between the situation where a conversation with an infor- mer/agent is recorded and a situation where it is not. 50See Hoffa v. US, 385 US 293, 302 (1966) and v. Perkins, 496 US 292, 300 (1990). See further , 2007, p. 51Mr must therefore have been aware from then on that he was engaged in a criminal act punishable under Article 19 of the Drugs and that consequently he was running the risk of encountering an undercover officer whose task would in fact be to expose him at para. 74420/01, 5 February 2008. For examples of other recent cases see Sallinen and Others v. , No. 50882/99, and Taxquet v. , No. 926/05, 13 January 2009.