sou · GYB3103 · 2010-12-23 00:00:00 — In conclusion, the Court ruled unanimously that the blanket and indiscriminate nature of the powers of retention of all three categories of personal informa- tion had failed to strike a fair balance between the competing pub- lic and private interests, and that there had been a violation of Article 8. The implications of this for visual records seem to be as follows. As the have the task of investigating and preventing crime, some degree of suspicion, of a past, or ongoing, or even future offence will provide sufficient basis for the retention of visual records which identify a given individual. Some sort of legal authority would seem to be necessary to keep photographic records of covertly photo- graphed suspects, although there is nothing to indicate that the Court would require this to be in statute form.139 The degree of suspicion necessary for justifying retention of records can reason- ably be expected to vary according to the seriousness of the offence.140 The need for investigative secrecy (at least as far as 139The applicable framework, the Code of Judicial Procedure and förordning (1992:824) om fingeravtryck m.m. only covers photographing of arrested persons. See also RPSFS 2005:12 - FAP 473-1. 140Cf comment in , op. cit at para 84 the court is required to carry out a careful exercise of weighing the legitimate aim to be pursued, the importance of the right ongoing and future offences are concerned, and for past offences which have not resulted in prosecution for some reason, but where reasonable suspicion against a person continues to exist) means that, in the case of visual records, the very fact that a record exists may be kept secret. As mentioned before, as the must be given great discretion in this area, it is necessary to provide for some form of external control mechanism, capable of monitoring and influencing the general practice of retention. As this concerns operational decisions, only a body with a degree of expertise in weighing the investigative advantages against interferences in privacy will satisfy the Convention test of necessity in a democratic society.141 It is also necessary to provide a remedies system, capable of determining the proportionality of continued retention of a given record on an individual when and if that individual complains.142 Again, it should be stressed, where there is a need for investigative secrecy in the individual case, the very existence, or non-existence, of a record can be kept secret from a complainant. 6.6Proactive surveillance, national security surveillance and strategic surveillance There is considerable, but not complete, overlap between the cate- gories of proactive surveillance (meaning surveillance designed to prevent the commission of offences), national security surveillance and strategic surveillance. Different states provide for different types of surveillance depending upon whether they have a security agency with powers or not (which tends to mean a stronger link between surveillance and offences) and whether or not they have a strategic surveillance capacity. which is the subject of the interference and the extent of the interference. Thus an inter- whose object is to protect the community from the danger of terrorism is more readily justified as proportionate than an interference whose object is to protect the com- munity from the risk of low level crime and disorder. See also the approach of the BVerfG as regards dissemination of intelligence, noted in the next section. 141The purpose of the present report is to analyse the accordance with law requirement, so I will not go into this issue here. I should, however, note that in v. , No. 62332/00, 6 2006, the Court did not consider to be a sufficient remedy because it did not, in practice, question operational decisions to retain data by the security . For a general treatment of the issue of controls see, , 2000, pp. 222–258. ibid. (violation of Article 13, because there was no body capable of determining the proportionality of permitting access to security files). The Convention does not limit the possibility to interfere in Article 8 to the situation where there has been an offence, or an offence is ongoing. The wording of Article 8 expressly allows inter- in private life to prevent disorder or the future com- mission of offences. In and Saravia for example, the Court accepted that the German system of strategic surveillance, which need not be linked to offences, could be justified for the pre- vention of crime and the protection of national security.143 As already indicated, the boundary line between preventive sur- veillance and investigative surveillance is not hard and fast: it depends upon how the crimes are formulated, and the associated national doctrines in the general part of the criminal law on inchoate crimes and participation in crime (conspiracy, preparation, attempt etc). Security crimes in particular tend to begin early in the sense that even preparatory steps can be criminalized.144 The Courts case law emphasizes precision in formulation, that surveillance must be limited to the most serious offences and that safeguards must be adequate against abuse. Thus, it is a reasonable conclusion to draw from the Courts case law that surveillance should only be available for preventing either serious damage to national security or a clearly defined category of the most serious offences set out in a states criminal code and concerning which there are reasonable grounds for fearing that these will occur and that surveillance will assist in preventing these. It is reasonable to assume that preventive sur- veillance will often, or at least occasionally, be based on speculative intelligence which does not satisfy criminal law standards of rea- sonable cause to suspect the commission of an offence. As such, preventive surveillance with it greater risks of abuse, and overuse. The power to engage in it must be as narrowly defined as possible but as the requisite degree of precision can not be secured, logically, greater safeguards must be available against abuse and overuse as compared to surveillance to investigative an already committed or ongoing offence. There is obviously a of appreciation for each state in how it goes about framing the authorisation procedure. However, I can note that a simple proportionality test in the sense of weighing the gravity of the crime occurring against the interference with the private life of the suspect, and others caught up in the surveillance, cit at para. 144For a discussion of the criminalized stages involved in the offence of promotion of terrorism see and 2009. risks authorisation being routinely granted for very serious offences, even if, in the circumstances of the case, the actual gain to the investigation/prevention is very small or non-existence. Thus, it would seem sensible to condition preventive surveillance on the ful- filling of successive hurdles: that there is a high degree of likelihood that the target is engaged in serious crime and there is a high degree of likelihood that the secret surveillance being requested will assist in the /prevention of the offence. As regards national security surveillance, the Court has accepted that this does not have to be linked to investigations of concrete criminal offences. This is because some states have civilian security agencies without powers and with broader mandates than the investigation of crime. The Court has not defined national se- curity. The Commission earlier took the view that national se- curity cannot be defined exhaustively.145 The Court however, has become increasingly skeptical to states arguments that national security justifies a vaguer and more flexible approach to the require- ments of foreseeability and accessibility. Certainly, preferential treat- ment for national security is becoming more difficult to justify the more the areas of policing and security overlap, as they do par- ticularly in relation to terrorism. In Amann v. the applicant was a businessman engaged in the importation of depilatory equipment. In 1981 he had been telephoned by a woman from the Soviet embassy who wished to buy a depilatory apparatus. Soviet diplomats conversa- tions were routinely being intercepted by the Swiss security and a file (albeit only a card index) was opened on the applicant as a contact person. He complained inter alia of the lack of authority for the telephone tap. Under the applicable domestic law at the time (the Ordinance on of the Federal Attorneys Office 1958) the were given competence to engage in the surveillance and prevention of acts liable to endanger the internal or external security of the . A similarly worded provision can be found in Section 17 of the Federal Code of Criminal Procedure (FCCP). The Court, however, found that these provisions were not sufficiently foreseeable to serve as a basis for telephone tapping, even passive tapping which was the 145 Mersch et al. v. Nos 10439-41/83, 10452/83 and 10512-3/83, 43 DR 78 (1985). See also M. v. , No. 10078/82, 41 D.R. 103, 117 (1985). As far as the legal definition of criminal offences against national security, territorial integrity and public safety are con- cerned, the authorities of the particular State are best placed to decide whether a restriction designed to prevent such offences is necessary. It stated that these provisions contain no indication as to the persons concerned by such measures, the circumstances in which they may be ordered, the means to be employed or the pro- cedures to be observed. [These rules] cannot therefore be con- sidered to be sufficiently clear and detailed to afford appropriate protection against interference by the authorities with the appli- cants right to respect for his private life and correspondence.146 generally, one can say that the Court is increasingly aware of the room for abuse of the national security concept.147 In Iordachi, national security was one of the bases for surveillance. The Court criticized the lack of concretization of this and the other terms used in the applicable law.148 the Court referred to the need to take care not to stretch the concept of national security beyond its natural meaning.149 The and and Saravia cases, discussed below, illustrate a tighter approach to national security. And there are several other cases involving security justifications in different contexts, e.g. security screening and security deportations, in which the Court has expressed the need for strong controls on the use of security powers to prevent abuse.150 In one aspect, the Court appears to accept that national security allows for greater latitude. A number of European legal systems, e.g. and the UK,151 do not appear to permit law enforce- ment surveillance of certain categories of people, but do appear to make an exception for national security surveillance. 147For an early warning in this regard, see Judge Pettitis separate opinion in : The legislation of numerous European states fails to comply with the Article 8 as far as telephone tapping is concerned. States use or abuse the concepts of official secrets and secrecy in the interests of national security. Where necessary they distort the meaning of that term. Some clarification of what these concepts mean is needed in order to refine and improve the system for the prevention of terrorism ... the Courts Klass, , Huvig and Kruslin judgments have all remained largely ineffective. The people running the relevant State services remain deaf to these injunctions and to a certain extent act with impunity..... cit at para. cit at para. 150See e.g. Rotaru v. , No. 28341/95, 4 2000, Al-Nashif v. , No. 50963/99, 20June 2002, at para. 124 (security deportations), Turek v.Slovakia, No. 57986/00, 14 Feb- ruary 2006 (Alleged former collaborator with state security agency unable to challenge his registration in agency files in proceedings guaranteeing equal treatment of both parties), Gulijev v.Lithuania, No. 10425/03, (Expulsion on the basis of a secret report of the Department which was not disclosed to the applicant), A. and Others v. UK, No. 3455/05, 19 February 2009 (security detentions), and K. v. , No. 2512/04, 12 February 2009 (Exclusion of foreign Unification Church activist from country supposedly on national security grounds: violation of Article 9). 151See , 2005. tion is naturally formulated in different ways. It can apply to all persons who are freed from the duty to give evidence under national law (doctors, priests, journalists etc.)152 or it can apply only to more restricted categories, e.g. a defence attorney explicitly or implicitly engaged by a suspect.153 Inter alia Klass v. FRG, v. Switzer- land and a letter interception case, Erdem v. ,154 indicate that the Convention does not require states to abstain totally from engaging in surveillance of privileged communications, e.g. between lawyer and client.155 I will turn now to strategic surveillance. In and Saravia, the applicants had argued that by intercepting private communi- cations beginning and ending in another country the German autho- rities were violating international law. The Court considered that the term law refers back to national law, including rules of public international law applicable in the State concerned. However, the Court required proof in the form of concordant inferences that the authorities of the respondent State have acted extraterritorially in a that is inconsistent with the sovereignty of the foreign State and therefore contrary to international law (para. The Court considered that Signals emitted from foreign countries are monitored by interception sites situated on German soil and the data collected are used in (para. The Court in these circumstances found that the applicants failed to prove their allega- tions.156 It should be noted that the German Federal Constitutional Court (BVerfG) had previously scrutinized the changes made in the German legislation permitting strategic surveillance, and found Article , as read together with Article 218, of the Dutch Code of Criminal Pro- cedure. Swedish Code of Judicial Procedure Chapter 27, section 22. This definition entails that not all conversations between a lawyer and a suspect are protected. the wider category of persons in the Code of Judicial Procedure Chapter 36, section 5. 38321/97, 5 2001. 155See also and Harman v. UK, No. 20317/92, where one of the applicants, a lawyer, alleged that files were held on inter alia her conversations with clients. The Commission accepted that that there was a reasonable likelihood of this, but did not find a violation of Article 8. Judge Pettitti expressed the separate opinion in that surveillance of partners should never be permitted, even in security cases. See further the recent UK case, In re McE (Appellant) (Northern ), In re M (Appellant) (Northern ), In re C (AP) and another (AP)(Appellants) (Northern ) [2009] UKHL 15, in which the House of Lords held that it was, exceptionally, possible to subject lawyer-client contacts to secret sur- veillance. 156The capability to intercept telecommunications in other countries, without, obviously, applying for judicial authorisations, was the subject of much debate, and disagreement, in the EU Convention on Mutual Assistance in Criminal Matters, 12 2000, OJ C 197. certain of these to be unconstitutional.157 The law was therefore amended. In any event, as regards the quality of the law, the Court concluded that the challenged provisions of the amended G 10 Act contained the minimum safeguards against arbitrary interference as defined in the Courts case-law.158 The BVerfGs judgment thus has to be examined. As regards matters which fall broadly into the category of accordance with the law, the BVerfG found that the inclusion of the offence of money laundering could not be justified. It also found the arrange- ments on transfer of information to the to be unacceptable. The list of offences in section 3(3) of G10 includes certain minor offences. The BVerfG specified that the more minor the offence is, the more concrete the indications must be that a given person has committed it, before transfer of information is allowed. Even the arrangements for retention and use of information by the intelli- gence service (section 3(4)) and transfer of information to the govern- ment (section 3(3)) were found to be insufficiently specified. The German intelligence service naturally comes across all of interesting information in its trawl of telecommunications. The BVerfG stated that the G10 law should specifically state that only information falling within the functions of the intelligence service (i.e. relating to the defence of the state) may be retained and used by the intelligence service, and transferred to the government. The BVerfG stated more generally that section 3(7) of the G10 law is deficient as it does not provide for a clear duty to mark intelli- gence originating from strategic surveillance, so that it can later be identified (and its use controlled). Finally, where the information is used is some way, it should not be destroyed (a point related to notification). As the BVerfG had set high Rechtsstaat standards, there was no need for the Court to set higher standards. By contrast, the Court found in the case that the UK system of strategic surveillance was not in accordance with the law. The UK government argued in that the accessibility requirements should be lower. At issue were the so called section 6 arrangements – the technical search parameters designed to mini- mize the collection of surplus information together with the instruc- tions to officials on how to produce intelligence assessments from 157BVerfG, 1 BvR 2226/94, 2420/95 and 2437/95, 14 1999, in NJW 2000, pp. Thanks to for help in translation. 98 of the Courts decision. The specific standards are set out below in my dis- cussion of the case. the raw intercept material and to whom these assessments could be disseminated. At the time these were not published. Even today, only parts of these are published, in the form of excerpts from the Code of Practice applicable to officials. To begin with, the govern- ment argued that disclosure of these arrangements would damage national security, as it would give information on search methods, allowing potential targets to modify their behaviour. It was also argued, which I would say tends to undermine the first argument, that the arrangements were anyway incomprehensible to anyone without a high degree of technical expertise in the area. The govern- ment furthermore argued that comparisons with the much more open German system were not fair. Besides, the UK faced a greater terrorist threat than other states, which should justify granting it a greater degree of leeway. The government argued that the UK sys- tem had quite different safeguards, in particular, the oversight of an IOC (now ) Commissioner, a senior judge who operates a post-hoc supervision of the system, including looking at the working of the section 6 arrangements. In this respect, the government referred to the earlier case of v. UK.159 One of the issues before the Commission in this case was whether the authority given in the IOC Act to intercept communications on the broad ground of national security was sufficiently clear and foreseeable. The Commission considered in v. UK that a vague term can be explained by administrative or executive statements and instruc- tions.160 It referred to the requirement set out in the Act to mini- mize interference and destroy surplus material, the supervisory competence of the IOC Commissioner and the remarks made by the IOC Commissioner in two of his annual reports regarding the term national security.161 It concluded that, in the circumstances, the Act satisfied the requirements of accordance with the law. However, if one looks at these comments, one can see that the IOC Commissioner did not, in fact, further specify the term, but simply acknowledged the difficulty in doing so.162 It can be said here 159Christie v. UK, No. 21482/93, 78A DR 119 (1994). 135, referring to the judgment of the Court in Silver v. UK, 25 1983, A/61, paras 88–9. 161Reports of the Commissioner for 1986 and 1988, respectively Cm. 108 (1987) and Cm. 652 (1989). 162The IOC Commissioner also stressed in his comments that everyone involved was doing their job properly and that there was no cause for alarm. Such reassurances are a recurring feature of the UK system, see, e.g. the IOC Commissioners explanation why there is no need to fear unauthorised tapping in Report of the Commissioner for 1997, Cm. that while the Convention organs have regarded executive regula- tions (ordinances etc.) as falling under the term law, it is a signi- ficant expansion of the term to say that executive statements can do so. The Commission in effect said that the mere existence of the IOC Commissioner was enough to satisfy the quality of law require- ments. The Court, correctly in my view, rejected all of the govern- ments arguments in . The Court stated that it does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other. The Courts approach to the foreseeability requirement in this field has, there- fore, evolved since the Commission considered the United King- doms surveillance scheme in v. the United Kingdom.163 It added that while the IOC (now ) Commissioner was an important safeguard against abuse of power it did not contri- bute towards the accessibility and clarity of the scheme.164 The Court went on to list the issues which should be accessible in statute law, referring to its earlier decision in and Saravia In par- ticular, the G10 Act stated that the was authorised to carry out monitoring of communications only with the aid of search terms which served, and were suitable for, the in- vestigation of the dangers described in the monitoring order and which search terms had to be listed in the monitoring order Moreover, the rules on storing and destroying data obtained through strategic monitoring were set out in detail in section 3(6) and (7) and section 7(4) of the amended G10 Act The authorities storing the data had to verify every six months whether those data were still necessary to achieve the purposes for which they had been obtained by or transmitted to them. If that was not the case, they had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked; the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and section 7(4), had to be supervised by a staff member qualified to hold judicial office. The G10 Act further set out detailed provisions As already mentioned, I personally consider that while the Commissioner can be described as a safeguard, I do not think it is important in the sense of being a robust and well-functioning safeguard. governing the transmission, retention and use of data obtained through the interception of external communications. The Courts emphasis of the accessibility requirements in this case are probably due to the wide, indeed virtually unfettered (para. 64) discretion the British legislation gave to the authorizing body.165 In one sense, as the respondent government itself argued, the British system was foreseeable. and all communications between the UK and abroad could be, and were being, intercepted.