sou · GYB3103 · 2010-12-23 00:00:00 — Utredaren ska i ett delbetänkande redo- visa resultatet av sina överväganden när det gäller polisens och tul- lens möjligheter till inhämtning av uppgifter om elektronisk kom- munikation med egna tekniska hjälpmedel samt inhämtning av upp- gifter om mobiltelefoner, telemeddelanden och abonnemang inom polisens och tullens underrättelseverksamhet och under förunder- sökningar innan det finns någon skäligen misstänkt gärningsman. Uppdraget i övrigt ska redovisas . (Ju 2008:01) Ändrad redovisningstidpunkt för uppdraget Med stöd av regeringens bemyndigande till- kallade chefen för en särskild utredare med uppdrag att överväga vissa straffprocessuella och polisrättsliga frågor angående de brottsbekämpande myndigheternas dolda spanings- och utredningsverksamhet och att lägga fram de förslag till lagändringar som utredaren finner lämpliga (dir. 2007:185). Utredningen har antagit namnet (Ju 2008:01). Enligt uppdraget ska utredaren i ett delbetänkande redovisa resul- tatet av sina överväganden när det gäller dels polisens och tullens möjligheter till inhämtning av uppgifter om elektronisk kommu- nikation med egna tekniska hjälpmedel, dels inhämtning av upp- gifter om mobiltelefoner, telemeddelanden och abonnemang inom polisens och tullens underrättelseverksamhet och under förunder- sökningar innan det finns någon skäligen misstänkt gärningsman. Delbetänkandet ska lämnas . Uppdraget i övrigt ska redovisas . Uppdraget till den särskilde utredaren ändras på så sätt att del- betänkandet inte behöver innehålla redovisning av utredningens arbete när det gäller polisens och tullens möjligheter till inhämt- ning av uppgifter om elektronisk kommunikation med egna tekniska hjälpmedel. Den delen av uppdraget ska i stället redovisas i sam- band med den slutliga redovisningen. Uppdraget ändras även på så sätt att tidpunkten för redovis- ningen av delbetänkandet flyttas fram till och tidpunkten för slutbetänkandet till . Expert report to the Inquiry on Certain Methods A typology of surveillance and something on infiltration .. The approach of the Court to Article 8 ............................... Generally on the concept of law in the Courts case law .... What is an interference with Article 8? The content of Article 8 ........................................................ Home and correspondence ................................................... Participatory audio surveillance................................. 5.2.3 Infiltration of the home ............................................. 5.2.4 Strategic surveillance of radio-borne 5.3.2 Private Life in non-private zones: visual 5.3.3 Private Life in non-private zones: aural Digital private spaces.................................................. Level and type of regulation requirements set by the Courts case law on accordance with the law....................... Issues for further discussion ................................................. 6.5 Differential standards for different forms of surveillance...475 6.6Proactive surveillance, national security surveillance and I have been asked to provide a report analyzing the case law of Court of Human Rights relating to the issues, first of surveillance by technical means, and second, of the use of infiltra- tion. The focus in both cases is on examining which methods of surveillance and infiltration require regulation by law and the degree of precision of this regulation.1 The present report, however, is not a systematic comparison of the existing regulation of surveillance in with the Convention standards, even if I, on occasion, do take up such compliance issues. A few introductory points are in order. Elaborating useful forward-looking rules from the backward-looking case law of the Court is not an easy task. The Courts case law should be seen as an accumulation of general principles. The generality of the prin- ciples involved tends to reduce its value in specific concrete situations. The Court takes both admissibility decisions and issues judgments. In general, the Courts reasoning in admissibility deci- sions is considerably briefer and less developed than its reasoning in judgments (one relevant exception being the and Saravia case, dealt with below). In the absence of a judgment, one has to build an analysis on the basis of admissibility decisions. The Court develops its principles over time, only rarely overruling earlier cases, but instead distinguishing these. Thus, there can be a degree of inconsistency between earlier and later case law.2 The concepts used in the Convention are autonomous. This means that the fact that a particular state measure is not regarded as an interference in private life according to a state constitution and laws does not necessarily mean that it is also so regarded from the perspective of the Convention. Even though Convention concepts are autonomous, the Court has rarely taken the opportunity to elaborate upon the meaning of a particular Convention concept, but has, up until relatively recently, attempted to limit explicitly its discussion to the case in hand. This caution showed by the Court is 1I would like to thank my colleagues , , and for helpful comments made on an earlier draft of this report. errors etc. remaining are my responsibility. This report was written in February 2010 and thus takes up practice up to this time. At the time it was published, , I made certain changes in order to take into account two important judgments (the Uzun and cases) which had been issued during the period February–. 2Judgments have a higher status than admissibility decisions, but where a judgment is later qualified by an admissibility decision the result is that the legal position is uncertain, especially where the Courts reasoning is not always clear. partly because the Court was not intended to act as (and does not – yet – have the legitimacy to act as) a fully-fledged constitutional court. However, its constitutional functions are increasing, and the Court is becoming more pedagogical in style. It now tends to begin its treatment of a case by recounting the applicable general principles, as derived from its case law, before applying these to the facts in the case. In reaching a conclusion that something is, or is not, in accordance with the Convention, the Court tends to aggregate all the relevant factors. A law, or legal mechanism, which is regarded as deficient in formulation (e.g. because it is imprecise) may nonetheless be corrected by a safeguard (e.g. because it compensates for the risk of abuse caused by the imprecision). It is thus very important to take into account the whole context of a judgment. States A and B may have the same, or more or less the same, formulation of a particular state power. However, the safeguards in the law, or the ways these are applied, may vary between the two states. This can mean that safeguard X – which was of crucial importance in finding that state As laws were acceptable – is missing in state B, or exists on paper, but is not applied in practice, with the consequence that state B is found in violation of the Convention.3 In this respect one can note that states party to the ECHR are obliged to take into account cases concerning other states. Under ECHR Article 46, states only undertake to abide by the final judgement of the Court in any case to which they are parties. However, the general obligation under Article 1 to secure to every- one within their jurisdiction the [Convention] rights and free- doms means that the national legislator, and the national courts, cannot ignore cases concerning other states. Having said this, the room for interpretation the national legislator, and national judge, has in applying a judgment concerning another state will be larger, because the differences between the two factual situations (the in- stant case, and the case dealt with by the ECtHR) will usually be greater. A national legislator, faced with ECtHR case law concerning other states, can be tempted to regard as unsettled the issue of whether or not its law is in conformity with the Convention. 3 Obviously it is vitally important that the Court fully understood the respondent states laws and practices. If and when it bases its judgment on a misunderstanding of these, it not only undermines the value of the case as a source of law for the respondent state, but for all the other contracting parties too. want to wait for a judgment on the issue against its own state, or at least a clear Grand Chamber judgment (one of the main ideas be- hind the Grand Chamber being to provide coherence in the ECtHR case law). However, to do this is to stretch its obligations to fulfill Article 1 in good faith. It must be remembered that the ECHR is intended as a mini- mum standard.4 In a situation where relatively clear ECtHR case law indicates strongly that laws or practices are not in conformity with the Convention, the correct approach for the national legi- slator is not to balance on the boundary of what is permissible.5 This applies particularly to a legislator which wishes earnestly to avoid putting its judiciary in the position of having to re-write major pieces of legislation found to breach the Convention.6 A states ambition to ensure that there is no doubt that it complies with its obligations under the Convention should be also strength- ened by the fact that the Court applies a teleological inter- pretative method. This method means that rights are constructed so as to be relevant to the needs of society today, which in turn means that the demands placed upon states can increase with time. As shown below, the accordance with the law standard in the Courts case law has been developed as a safeguard against misuse of power. Here one should be aware that important safeguards can be implicit in a states legal culture. However, the Court is in a poor position to judge the efficacy of legal cultural safeguards.7 What- ever the formal legal safeguards in a states system, the and the prosecutor, as a result of professionalism, training etc. may in practice adhere to high ethical standards in investigating crime. But the Court simply put, has so far found it difficult to say openly to 4In this respect I should note that a strengthening of the constitutional protection of per- sonal integrity (RF 2:6) (prop. 2009/10:80) will enter into force 1 January 2011. everyone is vis a vis the state protected against significant interferences with personal integrity, if this occurs in the absence of consent and involves surveillance or monitoring an individuals personal relations (var och en gentemot det allmänna [är] skyddad mot betydande intrång i den personliga integriteten, om det sker utan samtycke och innebär övervakning eller kart- läggning av den enskildes personliga förhållanden). SOU 2001:25, s. 331 balansera på gränsen till vad som kan tänkas strida mot grund- läggande mänskliga rättigheter. 6This was made clear repeatedly in the travaux préparatoires to the incorporation statute, Prop. 1993/94:117. The Swedish courts, for their part, demand clear support in the ECtHRs case law before they are prepared to overturn the applicable Swedish law See NJA 2000 s. 622, NJA 2004 s. 840, and NJA 2010 s.268 I-II. 7Cf , 2000, p. 258 In practice, the value of an external monitor will mainly depend on the political climate in which he or she works, the dedication of the office holder and the competence of his or her staff. These are fairly intangible things on which to form an opinion, far away in . As already mentioned, the Court is relatively ill-equipped to judge whether formal safeguards are real safeguards, and it knows it. state A, when it finds state As laws and practices to be in violation of the Convention, we did not find State Bs system in violation of the Convention, because State Bs are better trained, better resourced and relatively well behaved: but your are none of these things. Besides, even if they work well most of the time, legal culture safeguards can come under pressure in a variety of ways and can change with time. This is another reason for formalizing and making explicit such safeguards. In this respect I can note that within the EU, and prosecutorial cultures are increasingly coming in contact with each other over national borders. There is an obvious need of increased international cooperation in dealing with transboundary crime. Assistance within the EU is increasingly being based on the principle of mutual recognition. The idea is that the and prosecutor should be able to offer their colleagues in other EU states the same measures they use themselves in investigating and prosecuting crime. Joint investigation teams, while still rare, are becoming more common. In these circumstances, it is not enough to rely upon national legal cultural safeguards. There is a heightened need for improved clarity in the text of the applicable law, and for explicit statutory safeguards against misuse. In the present report, I have set out the explicit standards set by the Court. Where these are not clear, I have tried to extrapolate these, working on the logic of the Courts case law as a whole and my own knowledge of the area. I have tried faithfully to identify which parts of my report consist of Court standards, and which parts consist of my interpretation of these. 2A typology of surveillance and something on infiltration Surveillance and data accessing are increasingly growing together. As far as digital data is concerned it is difficult to distinguish between stored and transmitted data, as the form and content of the data stored in one computer system can be very quickly changed, or even automatically updated, by communications from another computer. This in turn means that it can, in practice, be difficult to distinguish search of the data bank from interception of com- munications. Moreover, insofar as the product of surveillance be- comes part of data banks, the Convention sets out require- ments concerning the legal framework for the regulation of these data banks. Even these requirements are relevant for this report. I have not, however, dealt with these in detail. For the purposes of the present report, it is useful to distinguish between eight technical surveillance methods. The first of these is bugging, the use of concealed microphones to pick up conversa- tions to which the monitor is not a party. The second and third are secret respectively overt (open) visual surveillance meaning the use of an apparatus for monitoring and recording pictures. A sub-group here is the use of sophisticated imaging, such as microwave radar, or infra-red cameras, to pick up activity within or in other difficult surveillance situations. Such an apparatus can be steered manually or remotely. The fourth type of surveillance is the use of a microphone and recording device to monitor a conversation in which the monitor participates. The conversation being recorded can be over a telephone line or in a private or public place (human wires or participant audio surveillance). The participation in the conversation is open, but the recording is not. Thus, the sur- veillance is still secret. The fifth is the video equivalent of the fourth type, i.e. the use of a concealed visual recording device to docu- ment an event to which the monitoring person is party (participant video surveillance). The fourth and fifth types of surveillance can naturally be combined. The sixth type is the monitoring of the content of telecommunications to which the monitor is not party. This used to be called telephone tapping, although telecommuni- cations now also covers radio and microwave/satellite communi- cations media, and fax, e-mail and other forms of communications between or via computers. The seventh type of surveillance in- volves identifying the circle of persons or telecommunications addresses with which the target communicates (metering infor- mation). The eight type of surveillance obtains what can be called location information, indicating the physical location of a thing, or a person. This can involve the physical of a bug which sends a radio signal indicating location. The use of movement sensors would also fall under this. However, there can be an overlap between the seventh and eight categories in that tracking a targets use of a mobile phone or a laptop computer, used for communicating with the internet, will give both location information and information on who, or what, the target is communicating with. A mobile phone, when switched on, or a laptop, when connected to the internet, sends periodic signals to the nearest transceiver stations. position can then be plotted, with more or less accuracy, depending on the strength of the signal vis-à-vis the nearest transceiver stations. Location information can also be obtained from the targets use of different types of plastic cards containing computer chips or electro- magnetic tape which send electronic signals to public or private data banks. These signals have the side effect of indicating the targets location (e.g. withdrawals from cash , entry into a zone which requires a key card, lending of books in a library). When I wish to refer to both the seventh and eight categories, I use the term interception of teledata. It should be stressed that power, like water, tends to seek the point of least resistance. When one area of surveillance has been sub- jected to tight control, or a total prohibition, there is a risk that the and security services seek the same information in other ways. This should reinforce the importance of regulating the whole area of state surveillance.8 Although I have distinguished between these different methods, these should not be seen as water-tight categories. As well as requiring different types of equipment, the above surveillance categories can be distinguished on the basis of whether they are employed after the event, or are contemporaneously to it (in real time). For example, metering information is post hoc. of a bug indi- cating location occurs in real time, whereas, at least at the present state of technological development, most other forms of location information (withdrawals from cash etc.) can only be ob- tained some time after the event. As regards infiltration, the following can be said. Infiltration can be described as a special investigation technique, involving the use of informers (private persons) or undercover agents (, customs etc. officials) to obtain information from suspects and others on planned, past or on-going offences. The boundary line between infiltration and ordinary work, which can also in- volve secret visual or aural observation and the use of informers, is not hard and fast. Infiltration is a necessary part of the arsenal in dealing with crime, especially organized crime. However, when a private person is used to penetrate a suspected criminal activity, a variety of accountability problems arise. Informers activities can be sub- ject to varying degrees of (lack of) control from their Lustgarten and 1994, p. And with both undercover agents and informers, problems arise from the perspective of the Rechtsstaat when they participate actively in crimes. The American sociologist distinguished between four different types of work on the basis of two criteria: the overt- ness of the actions and their deceptive or non-deceptive nature.9 This gives a four-fold typology: overt and non-deceptive (which covers much conventional work), overt and deceptive, (e.g. where a suspect is tricked by officers into providing a confession), and non-deceptive (e.g. surveillance operations) and and deceptive. This fourth category would cover undercover operations by either agents acting with false identities and/or informers being operated by agents. A third criterion can be added: the interaction between investigating authorities on the one hand and witnesses, suspects and third parties on the other, to give a six-fold typology.10 On this classification, the use of informers would fall within the category of secret investigations with interaction but without deception whereas the relationship between a officer who conceals his or her iden- tity and a suspect or potential offender would be regarded as secret investigations with interaction and with deception. These classi- fications are of some use in understanding whether, and if so, how, different types of undercover operation can infringe privacy. How- ever, too much weight should not be put on them. For example, there will almost invariably be an element of deception involved when informers are deliberately used to infiltrate a criminal organi- zation. The suspect/potential offender may know the true identity of the person s/he is talking to, but will not know that this person is informing for, and/or acting on the instructions of, officers. 3 The approach of the Court to Article 8 In general, the Court approaches cases which raise issues under Article 8 in the following way. First, it considers whether the action complained of falls within the scope of the right in question, and whether it infringes this right. Having found that the right has been infringed, it proceeds to consider whether the action taken by 9Marx, 1988, pp 11–13. Helmius, 2000, p. 28, who instead employs a scale of measures on the basis of the level of interference with personal integrity. 10See , 2005, referring to Valkaneer, 2000, p. the state falls within one of the accommodation , i.e. whether it has been taken in the furtherance of a legitimate aim. Next, it determines whether the infringement could be said to be in accor- dance with the law. The fourth and final step taken by the Court is to determine whether the infringement was necessary in a democratic society. The Convention organs treat steps three and four as successive hurdles. This means that where they find that a measure complained of is not in accordance with the law, then they usually do not proceed to examine whether the measure satisfies the requirements of necessity in a democratic society.11 4Generally on the concept of law in the Courts case law The Court has stated that the two terms prescribed by law (in Articles 9, 10 and 11) and in accordance with the law (in Article 8 should be treated in the same way.12 The Court held in v. UK that the law includes common law rules as well as statutes and subordinate legislation.13 The Court has even accepted that a collective agreement can constitute law in the con- text of the Nordic tradition of leaving the regulation of the labour market to employees and employers organizations.14 The Court stated in the case that to qualify as law a norm must be adequately accessible and formulated with sufficient precision to enable the citizen to regulate his conduct.15 This is not a mere for- mal requirement. It also relates to the quality of the law in question. In Silver and others v. UK the Court made it clear that a law which allows the exercise of unrestrained discretion in individual cases will not possess the essential characteristics of foreseeability and thus will not be a law for present purposes. The scope of the dis- cretion must be indicated with reasonable certainty. The Court has also stated that adequate safeguards also must exist against abuse of 11See, e.g. the cases of v. UK, Huvig v. and Kruslin v. , discussed below. See however, v. UK, below 12A single expression is employed in the French text (prévue par la loi). Silver and others v. UK, 25March 1983, A/61, para. See further, van Dijk and van Hoof, 2006, p. Although the phrase as such occurs in Articles 8-11, other articles in the Convention also implicitly or explicitly condition state interference with a right on a law. 13Sunday Times v. UK, para. 14Wretlund v. , No. 46210/99, Decision 9 2004 (Obligation on employee at nuclear plant to undergo drug test: inadmissible).