sou · GYB3103 · 2010-12-23 00:00:00 — situation, the recording will usually have a greater or much greater evidential value at a subsequent trial (some systems may not even allow the submission of an agent, or an informers testimony regar- ding the content of a conversation with the accused). Having said that, the question is whether this distinction is relevant to the issue of the infringement of the home. In both cases, the person has ob- tained entry to the home, and the possibility to converse with the target, by using (or passive) deception. Different types of system of crime investigation and crime pro- secution operate in European states. In some systems, e.g. the , under the Regulation of Investigative Powers Act 2000, the themselves decide on the use of human intelligence sources, even where this involves infiltration of the home. One can also have a system under the control of the prosecutor, who, depen- ding upon the constitutional system in question, can belong to either the executive or the judicial branch. A third method of con- trol over infiltration measures is to require the approval of an in- vestigating judge. This third method is likely to be perceived by the Court as the strongest type of control. Certainly, in , the Court placed weight on the fact that the operation was under the control of an investigative judge. The Court may conceivably be less demanding as regards the explicitness of statutory authorization for infiltration where the judiciary is involved in authorizing infil- tration which involves entry into the home (even if the reality of this control may vary from state to state). One can argue that, in , the public prosecutor has a strong duty of objectivity, and, in many respects provides an equivalent level of protection to that of an investigating judge. Nonetheless, s/he is, constitutionally speaking, part of the executive power. More- over, the Prosecutor General is a government appointee. The Pro- secutor General, or a chief prosecutor, does not have power to in- fluence how a subordinate prosecutor reaches his or her decision in an individual case, but does have the power to take over the case or reallocate the case to another prosecutor. In practice, by virtue of the constitution (RF 11:7, after 1 January 2011, RF 12:2) the Swedish prosecutor has strong guarantees of independence from direct government control in an individual case. Moreover, the Code of Judicial Procedure (see in particular Chapter 20) directly gives a prosecutor in charge of a case the decision-making power over that case and Swedish legal culture (backed up by strong constitutional protection of freedom of Information and freedom of expression) provides protection against improper removal of a prosecutor from an individual case by the Prosecutor General. However, it should be admitted that, on paper, the structural safeguards in are relatively weak. But in any event, the Swedish prosecutor is not in charge of all investigations into crime or even the majority of these. Even as regards more serious crime, where the prosecutor will invariably be involved, the prosecutor might well come in at a later stage, after an infiltration operation has been run by the . As mentioned, in the UK, precisely because the them- selves decide upon infiltration the decision was taken in 2000 to in- troduce an explicit statutory basis for all use of human in- telligence sources, together with a code of practice and a system of hierarchical authorization and control within the police.53 The UK system also deals with the problem of establishing the threshold of infiltration, in other words, of distinguishing this from ordinary use of informers or plain-clothed simply observing people or crime scenes. One naturally does not have to choose the British model. A variety of models can be used, but the important thing would appear to be the criteria of direction and control. Another relevant issue to take into account is the states rules for excluding evidence to ensure the fairness of the trial. While the issue of statutory regulation is separate from the issue of fair trial, the two issues are nonetheless clearly linked in that it is the end result in which the Court is interested. Thus, something must be said about it, even if I do not need to go into this issue in any detail 53 The UK Sources Code of Practice provides that: 4.1Under section 26(8) of the 2000 Act a person is a source if: (a) he establishes or maintains a personal or other relationship with a person for the purpose of facilitating the doing of anything falling within paragraph (b) or (c); (b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or (c) he covertly discloses information obtained by the use of such a relationship or as a consequence of the existence of such a relationship. 4.2A source may include those referred to as agents, informants and officers working undercover. 4.3By virtue of section 26(9)(b) of the 2000 Act a purpose is , in relation to the or maintenance of a personal or other relationship, if and only if, the rela- tionship is conducted in a that is calculated to ensure that one of the parties to the relationship is unaware of the purpose. 4.4By virtue of section 26(9)(c) of the 2000 Act a relationship is used covertly, and in- formation obtained as mentioned in paragraph 4.1(c) above is disclosed covertly, if and only if it is used or, as the case may be, disclosed in a that is calculated to ensure that one of the parties to the relationship is unaware of the use or disclosure in question. 4.5The use of a source involves inducing, asking or assisting a person to engage in the con- duct of a source or to obtain information by means of the conduct of such a source. (at p. 20, cop/human-cop2835.pdf?view=Binary in the present report. The Court ruled in Teixeira de v. Portugal54 and subsequently in a number of other judgments and decisions55 that when an infiltration operation has been used, the trial court must consider whether this undermines the fairness of the trial. Where undercover agents or informers have gone so far as to behave as agent provocateur, the evidence must be excluded. As regards the question of leading evidence which has been obtained in breach of a substantive right under the Convention, so far it seems that only where evidence has been obtained by torture will this automatically mean that the trial violates Article 6.56 Thus, the Court – so far – has excluded the fruits of the poisonous tree doctrine as a means of compelling the to comply with substantive Convention rights. The Court is aware that, like procedures for authorizing infiltration, evidential systems vary considerably from state to state. The Court is also aware that the efficacy of the mechanisms states have for ensuring that the follow the rules vary considerably, as do the sanctions on the for not following the rules. But the very fact that the fruits of the poisonous tree option has been excluded argues for the Court, in future, taking a tougher approach on the issue of statutory regula- tion of infiltration which is within the scope of Article 8, or on the borders of it. As it is the end result which is important, the Court may be prepared to give a freer hand as regards to a system with strong guarantees at the trial stage (and, correspondingly, less of a free hand to a system which does not exclude evidence). This is supported by the recent case of Uzun v. ,57 concerning the placing of a GPS receiver into a car, where the Court weighed in subsequent court discretion to exclude evidence at the trial stage in its analysis of whether the German regulation of GPS as a location device was in accordance with the law.58 55See in particular, Sequeira v. No. 73557/01, ECHR 2003-VI, Taal v. Estonia, No. 13249/02, , Vanyan v. , No. 53203/99, , Euro- finacom v. (dec. ), No. 58753/00, ECHR 2004 VII, Khudobin v. , No. 59696/00, 56See Jalloh v. , No. 54810/00 11 2006 (GC) and Gäfgen v. , No. 22978/05, 1 2010 (GC), the latter case dealing with the effect on admissibility of evidence of threats of physical harm made by interrogators. 35623/05, . See also Khudobin v. , op. cit. the Court recalls that a clear and fore- seeable procedure for authorising investigative measures, as well as their proper supervision, should be put into place in order to ensure the authorities' good faith and compliance with the proper law-enforcement objectives. In the present case the operation had been Here, one can note that while there is practice from the Swedish courts on the issue of maintaining equality of arms and otherwise ensuring fair trial, including cases concerning agents provocateur,59 the basic principle of Swedish evidence is the free admissibility of evidence. While it may sometimes be necessary to exclude evidence, simply put, I would say that it is not desirable to make this a stan- dard part of the Swedish trial system. There are other reasons for regulation. The principle of legality which applies for prosecution would also seem to entail some form of regulation of the situation where an informer or undercover agent breaks the law as part of an infiltration operation. And there are obviously drawbacks from the perspective of legal security (rätts- säkerhet) in focusing on safeguards at the trial stage, as many infiltration operations may never get to trial. Finally, as already mentioned, the increased international cooperation (particularly assistance based on the principle of mutual recognition) means that there is a heightened need for improved clarity in the law, and for explicit safeguards against misuse. Thus, while it cannot be said that the Convention case law at this stage definitely requires a statutory basis for infiltration opera- tions which affect (if not actually interfere with) the home, the factors sketched out above argue for introducing this in Swedish law. The sensible approach is to provide for a layered system of authori- zation, whereby infiltration operations which affect the home (or private life outside the home, see below) in a minor way might only require a higher level of authorization (i.e. a decision by a senior officer). Operations affecting the home or private life out- side the home in a more major way would require prosecutorial authorization and, conceivably, even judicial authorization. As regards involving the prosecutor in the process, one can argue that intelligence gathering is something for the , and it is first when it becomes evidence that the prosecutor should be involved. But this distinction is not always strong in practice. I think there is a definite value in requiring prosecutorial authorization as regards authorised by a simple administrative decision of the body which later carried out the opera- tion. It transpires from the materials of the case that the text of that decision contained very information as to the reasons for and purposes of the planned test buy. Furthermore, the operation was not subjected to judicial review or any other independent supervision. In the absence of a comprehensive system of checks accompanying the operation the role of the subsequent supervision by the trial court became crucial. 59 See e.g. RH 1995:32, NJA 1996 s 649, RH 1997:95, NJA 1998 s 204, NJA 2003, s. 323, NJA 2007 s 1037, NJA 2007 s 547, NJA 2009 s 475. the most serious infiltration. There is a value in making the go outside of the house to convince a person who is one stepped removed from the investigation of the need to take a particular measure. While the are expected to obey the law, it is fair to say that the prosecutor, by reason of her training, peer group and organizational pressure, is expected to, and does, hold herself to a very high level of law obedience.60 Moreover, the prosecutor is used to balancing restrictions in rights against the need for effectiveness in crime investigation and prosecution. I do not need to go more into these issues. Suffice to say that a variety of different types of regulation are possible here. A layered system of authorization is not inflexible. Even for infiltration operations at the serious end of the scale, emergency situations can obviously arise (spontaneous opportunities for infiltration etc.). But these are unlikely to be the norm and they can be handled by some system of retrospective authorization. As to whether involving the prosecutor is sufficient in the event that the Court later makes it clear that infiltration can breach the protection of the home/private life, I can note that, according to the Courts case law, the Swedish prosecutor does not suffice as a sufficiently independent control over arrest and detention.61 More- over, it is true that there are weaknesses on paper in the Swedish prosecutors independence from executive control. However, there is no doubt about the prosecutors independence from the , nor about the prosecutors ultimate ability to control the in the context of an investigation (förundersökning) when and if she wants to do so. Finally, the standards as regards Article 8 are more variable than those of Article 5. As far as concerns infiltration of the home not involving recorded surveillance (considered further below), it may be sufficient to give the infiltration a statutory basis, and establish the first two layers of authorization and control namely authorization by a senior officer and authorization by a pro- secutor – as long as the trial court, applying the principle of pro- portionality, has the discretion to exclude evidence obtained in an unfair fashion in subsequent proceedings. On the other hand, in the recent Uzun case, the Court explicitly stressed that it was prepared to accept such a system sketched out above (i.e. no judicial authorization) only because the placing of a GPS receiver into a car, involved a lesser degree of interference 60See also below, section 6.4 on the value of precise rules. 61McGoff v. , 26 October 1984, A/83. in privacy (considered further in section 5.3.4). The implication is then that the authorization of major interferences in privacy require stronger, i.e. judicial, controls. 5.2.4 Strategic surveillance of radio-borne communications The third issue relates to the interception of either the content of telecommunications traffic or telecommunications data carried by radio waves. This can be either of specific communications, or general strategic bulk surveillance. An argument can be made that, as the ether is free, there can be no expectation of privacy when radio is used. Thus, any interceptions of telecommunications traffic carried by radio waves cannot involve an interference with Article 8(1). As regards bulk interception of telecommunications data, or of strategic surveillance of the content of conversations, one can in addition argue that there is no identification, or at least, no initial identi- fication, of the identity of the people communicating, and so no inter- with private life or correspondence. There is some support for this proposition in older case law. C. v. , the applicant had used a cordless phone which transmitted on a radio frequency reserved for civilian and military traffic. This was an offence under Swiss law. The Swiss telecommunications authority recorded his conversations and used radio directional finding to locate his phone. The Commission con- sidered that, as the applicant chose to employ a device using a wavelength reserved for purposes other than private telephone com- munications, his conversations were thus accessible to other tele- communications users and so can scarcely be classified as private.62 However, this case is no longer authority (if it ever was) for re- garding interception of normal mobile phones, transmitting on law- ful frequencies, as not being an interference with Article 8.63 There is a huge difference nowadays between the vast numbers of people 21353/93, 80 DR 101 (1995) at p. The Commission also added that the contents of the intercepted messages were not revealed. This last point can be misleading bearing in mind the Courts view in , that the state retaining even metering information in the absence of statutory authority was a violation of Article 8. Another case concerning un- lawful mobile phones was decided by the Court, but the issue here was only the lawfulness of the search of the applicants home (Caminzind v. , ). 63There is another case, X. and Y. v , No. 8962/80, decision of 13 1982, where the Commission left open the question as to whether radio communications between two people could be protected by Article 8. who communicated by radio today and the very small numbers of people who communicated by short wave radio in the 1980s. Any- one with a mobile phone or using a cordless internet computer con- nection is communicating by radio. Moreover, even cable borne telecommunications can be routed via microwave. However, one cannot argue, as with short wave radio, that a person using a laptop or a mobile phone knows that he or she can be listened to. Micro- wave radio traffic in digital form is not capable of being picked up and understood by anyone with a radio receiver. It would make a mockery of a system for tightly regulating monitoring of cable borne traffic if one can circumvent this system by intercepting the con- tent of messages at the point when these are converted into micro- waves.64 Moreover, as shown below, the Court does not regard whether or not a reasonable expectation exists to be conclusive to the issue as to whether something is an interference with private life. Even if correctly decided at the time, the BC case is no longer good law. In the two recent cases concerning the issue, v. UK and and Saravia v. the Court drew no distinc- tion between on the one hand, the interception of telecommuni- cations data or the content of communications carried by cable and on the other hand, the same types of interception of microwave borne traffic. In both cases, interceptions had taken place of both cable and microwave traffic. In both cases the Court considered that the interceptions involved an interference with correspon- dence/private life. It should also be noted that the Court in and Saravia also found that the transmission of data from intercepts to, and their use by, other authorities constituted a separate inter- with the targets rights under Article 8, as did the destruc- tion of the data, and the refusal to notify the targets.65 64One can even envisage the construction of communications systems which build in such a microwave component for precisely this purpose, even though this is probably technically and economically speaking impracticable. 65Op.cit, para. In and others, the Court contented itself with stating that it considers that the existence of these powers, particularly those permitting the examination, use and storage of intercepted communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied ( para. Whereas correspondence and the home are relatively simple to under- stand, private life is difficult to define. The Court in fact con- siders that it is a broad term not susceptible to exhaustive defini- tion.66 It has so far contented itself with stating what it includes; activities of a professional or business nature, the right to estab- lish and develop relationships with others even in a public context, the physical and psychological integrity of a person, the right to personal development and the right to establish details of their identity as individual human beings.67 As will be shown below, a wide approach to the concept of private life is not necessarily problematic for public authorities, as the Court can balance this by a flexible approach to the issues of accordance with the law and necessity in a democratic society. In the context of surveillance, a wide approach to privacy does certainly not mean that surveillance cannot occur. The Court made it clear as far back as v. that a suspected criminal cannot argue that his or her conversations are absolutely protected against recording.68 As regards surveillance, it can be said that the underlying reason why the Convention protects privacy is because privacy is necessary for the development and maintenance of an individuals personality.69 But at stake is also the culture of the society itself. To take a simple example, what sort of society will you if you expect people to watch what they say every time they answer their mobile phone? Another argument relates to level of intrusion. While electronic surveillance is, in one sense, less direct and humiliating than more traditional state intrusions on privacy such as an overt, disruptive search of the home, in another sense it is more intrusive than such a search because it usually lasts longer, is more indiscri- minate and open-ended and affects more people.70 Moreover, when the product of electronic surveillance is used, e.g. in security 66Peck v. UK, No. 44647/98, 28 January 2003, at para. 67Moreham, 2008, p. 45 and references therein. 68Lüdi v. , op cit. 69As de Hert puts it: The fundamental right to be human is touched and threatened if all our actions are being scrutinized, because of the simple fact that we behave differently when we are observed, de Hert, 1997, p. 560, footnotes omitted. The Convention jurisprudence on the matter began with the famous Icelandic Dogs case, X v. , No. 6825/74, 5 DR 86 (1976). 70Lustgarten and , 1994, p. screening, or to justify more overt and intrusive state measures (e.g. arrest, search of a house) it will obviously affect the targeted person. The product may give an accurate picture of the situation – that the target is involved in crime – or it may give an inaccurate picture. Either way, the potential it has for deeply affecting a per- sons life means that it must be subject to controls. While some issues are very clear from the Courts case law, there are four which require a more detailed treatment. The first three of these issues concern when, and under what conditions, aural, visual and location-information surveillance of a person in a public place, or a private place not forming part of the home, are covered by private life? The fourth question relates to whether access to personal information on a person which is stored on a computer not his or her own involves an interference with that persons private life. In the following sections I consider these issues. As explained below, I think it is possible to draw a distinction between photo- graphing/secret visual surveillance on the one hand and secret audio surveillance on the other. I therefore begin with visual surveillance, which is also the topic which deserves the most detailed treatment. 5.3.2 Private Life in non-private zones: visual surveillance The Court has found on a number of occasions that visual sur- veillance in public places – still camera pictures or moving pictures – can constitute an interference with private life. The Court has stated that there is a zone of interaction of a person with others, even in a public context, which may fall within the scope of private life.71 The initial approach of the Convention organs to the issue of visual surveillance in public places is shown in v. Austria.72 This case concerned observation of demonstrators, and the Commission held that simply photographing a person in a public place is not an interference with private life.73 The Commission stated that three factors were 71Perry v. UK, No. 63737/00, 17 2003at para. 72Friedl v. , No. 15225/89, report adopted 19 1994. The case was settled before the Court. The government paid compensation to the applicant, and agreed to destroy the photographs taken. 73One can argue that the freedoms of expression and assembly set out in Articles 10 and 11 should be part of the interpretative context here.