TrustHLT/LaCour huggingface dataset:
GR1 (Government): acknowledges, as she says in rigging terms, the security threat, doesn't seek to minimize it, and then moved on.
GR1 (Government): That, we respectfully submit, is not good enough.
GR1 (Government): You can't turn up and simply assert that you are not minimizing the security threat.
GR1 (Government): There was no attempt to grapple with the very specific problems that we sought to identify with the specific safeguards that they assert need to be in place in order for their regime to be properly protective and safeguarded against Article 8.
GR1 (Government): And unless you are able to grapple with that, it isn't good enough simply to turn up and say, well, I acknowledge the security threat.
GR1 (Government): Anyone can do that.
GR1 (Government): Some bodies, however, actually have to deliver that.
GR1 (Government): And if safeguarding cuts across their ability to do that, or has the potential in a serious way to do that, then that at least calls into the most serious question whether this convention would require, with its overall balances I indicated, would require those safeguards to be imposed.
GR1 (Government): So far as the next thrust of her submissions is concerned, they were principally directed to communications data.
GR1 (Government): And what she asserted was the lack of safeguarding in relation to communications data.
GR1 (Government): So far as that is concerned, we do not accept that the position is as she asserts.
GR1 (Government): We have referred in relation to the basic test to be applied in our observations at paragraph 160 to the Malone case and to the other cases under this court's jurisprudence, which acknowledge that safeguarding is a context-specific issue.
GR1 (Government): You don't simply apply a uniform set of tests and then say, well, there it is.
GR1 (Government): That's what's required in all contexts.
GR1 (Government): And communications data are different in terms of the broad degree of their intrusion and the interference that they entail, if any, with Article 8 rights to, for example, content.
GR1 (Government): They're also very different because, as is evident, they lie, to some extent, at the heart of the ability of agencies to conduct non-targeted searching.
GR1 (Government): And we would refer in relation to that and to the importance of that sort of material and to the inability to know which, as it were, individuals you are needing to select or to examine for that purpose.
GR1 (Government): By definition, you don't know that when you're dealing with bulk data and its interrogation of this kind.
GR1 (Government): And we refer you, if we may, to two paragraphs only in the IPT's judgment referring matters back to the CJEU.
GR1 (Government): And those are paragraphs 15, 15, and 16, which refer to specific evidence on this very issue and the difficulties of seeking to devise some different regime that the IPT fully and clearly acknowledge.
GR1 (Government): But we, as a base point, do not accept, indeed, we deny the suggestion that there is insufficient protection of related communications data.
GR1 (Government): There are safeguards that apply at the point of obtaining, see our observations, paragraphs 174 to 176, only for narrow purposes.
GR1 (Government): Got to be national security in our context, only if necessary and proportionate.
GR1 (Government): There is safeguarding at the point of access, again, only if necessary, only if proportionate, only for specified purposes.
GR1 (Government): And one derives those from the combination of the base statutes governing the agency's activity, the Security Service Act and the Intelligence Services Act.
GR1 (Government): One derives it from section 6 of the Human Rights Act.
GR1 (Government): And one derives it from section 15 of RIPRA and chapter 7 of the code.
GR1 (Government): So there are serious limits at that point also.
GR1 (Government): Considerable emphasis was placed, if I'm an only friend, on the disparity in terms of safeguarding between section 16 and section 15.
GR1 (Government): But the reality is that in relation to CD, the safeguards that already exist are more than sufficient, we respectfully submit, to conform to the requirements of the convention.
GR1 (Government): Finally, on the 8.4 Amos Rose's submissions,
GR1 (Government): there was a sustained attack, both in the observations and orally, on the effectiveness of the actual oversight provided by the commissioners, and particularly in relation to the inspection regime that they operate.
GR1 (Government): That, we respectfully submit, is both an unfair and an unfounded criticism.
GR1 (Government): And we would invite you to consider just two documents in that respect for the detail, the thoroughness, and the effectiveness of that regime.
GR1 (Government): The first is the general report that is at tab 35 of your bundles from Sir Anthony May.
GR1 (Government): And secondly, and specifically to do with the inspection regime, describing what is done, describing how the process is undertaken, describing the detail which is applied, see the 2015 report from Sir Anthony, tab 36 of your bundle, paragraph 6.46,
GR1 (Government): and following.
GR1 (Government): So that's the commissioner.
GR1 (Government): So far as the IPT itself is concerned, there appears to be a surprising, and we respectfully submit, thoroughly unworthy attack on the independence of the Investigatory Powers Tribunal, chaired as it was by two high court judges and three other distinguished lawyers in our case.
GR1 (Government): The idea that on reading the three liberty privacy judgments, anyone could sensibly say that this tribunal had not conducted a thorough and independent examination of the relevant safeguarding regime, we respectfully submit is untenable.
GR1 (Government): Finally, in relation to Miss Mountfield's side of the case, intelligence sharing, her basic submission was in terms that there are, as she put it, no safeguards in relation to that regime.
GR1 (Government): That is, with the greatest respect to her, simply wrong.
GR1 (Government): It ignores the disclosure, with a capital D, that you've seen recorded in paragraph 47 of the IPT's December judgment.
GR1 (Government): It ignores the code that that became in chapter 12.
GR1 (Government): It ignores the Padfield principle, the public law controlling principle, that is referred to in that code.
GR1 (Government): And it ignores the fact that the basic section 15 safeguards, in fact, apply in that situation, bringing with it, alongside the base statutes that control the agency's activities and the HRA itself, the necessity and proportionality standards that lie absolutely at the core of this protective regime.
GR1 (Government): For all of those reasons, Mr. President,
GR1 (Government): we repeat our invitation at the end of my opening to declare these applications inadmissible, or to find in our favor on the merits.
GR1 (Government): I'm sorry I've taken a little time, but I suspect that the vast majority of questions were directed in my direction.
GR1 (Government): So I hope you'll forgive me.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much. I call now Mrs. Rose and Mrs. Mountfield please.
AP1 (Applicant): Mr President, members of the court, it's been apparent, having heard Mr Eadie's submissions and in particular having heard his responses to the questions posed by the members of this court, that essentially the Government's case amounts to saying this, trust us and we'll keep you safe.
AP1 (Applicant): It is clear that what my learned friend refers to as safeguards are simply provisions that say that the officials of the agencies must themselves make a judgement when they're deciding what material to collect, what material to keep, what material to search and what material to examine.
AP1 (Applicant): That they must make the judgement as to what search terms are appropriate, how long it should be kept, what is proportionate for them to do.
AP1 (Applicant): The reality is that there is no independent mechanism which can hold them accountable for that judgement.
AP1 (Applicant): And that in the context of what we now know to be this enormous database of private material.
AP1 (Applicant): It is as if we had a situation in which the DNA database that was the subject of SNMARPA or the fingerprint database were being held in secret by the police forces of the United Kingdom or France and the police officers were saying, well we will judge what material we need to hold and when it's proportionate for us to search it without any external controls.
AP1 (Applicant): And the problem is obvious.
AP1 (Applicant): One doesn't have to suggest, and I don't suggest that officials of the intelligence services are acting in bad faith.
AP1 (Applicant): But the difficulty is that institutions have a culture and have a natural predisposition to consider that things that they want to do and things that they can do are things that it is necessary and proportionate for them to do.
AP1 (Applicant): And that is why in order for there to be any real and effective protection for rights under Article 8 and Article 10, there must be some proper, rigorous, independent form of external control to hold these officials to account.
AP1 (Applicant): And we say that all of the answers that you've just been listening to in a range of different contexts such as communications data, periods of retention and so on, take you back to that central floor.
AP1 (Applicant): So their cases trust us to keep you safe.
AP1 (Applicant): Our cases have a legal framework to ensure that when carrying out their important functions, these public authorities are doing no more than is truly proportionate and are only using these very intrusive powers when they're necessary.
AP1 (Applicant): My learned friend says, oh well, Ms Rose mentioned the threat, but then she moved on.
AP1 (Applicant): With respect, I really didn't.
AP1 (Applicant): What I said was the threat is important, but the threat does not render the United Kingdom immune from the standards that apply under the convention.
AP1 (Applicant): One of the important ways in which our democracies resist the threats that they encounter is to reaffirm and to continue to protect our fundamental rights, including the right to privacy.
AP1 (Applicant): If we simply surrender all of that to the judgment of individual officials inside these secret agencies, then we have already lost the important battle that we are fighting.
AP1 (Applicant): To come to some more specific points in relation to the question of the cloud and whether material uploaded to the cloud would constitute an external communication, the answer given by Mr Eadie was a fascinating one, not least because of its lack of clarity and its evasiveness.
AP1 (Applicant): As far as I understood him, he said, well, we think material that's held on the cloud would not be a communication, but that it might be or would be a communication when it was uploaded to the cloud.
AP1 (Applicant): Now we find that a very strange answer in the light of the provisions of section 2, subsection 7 of RIPA, which is the definition section.
AP1 (Applicant): And section 2.7 says that for the purposes of this section, the times while a communication
AP1 (Applicant): is being transmitted by means of a telecommunications system shall be taken to include any time when the system by means of which the communication is being or has been transmitted is used for storing it in a manner that enables the intended recipient to collect it or otherwise have access to it.
AP1 (Applicant): And on that basis, it is strange to see why my learned friend seeks to distinguish between uploading material to the cloud and material being stored on the cloud.
AP1 (Applicant): Now we don't know the answer to that question because we don't know how the agencies actually interpret these provisions.
AP1 (Applicant): But that, we say, is an excellent example of the opacity and the difficulty of even understanding what powers the agencies claim to arrogate to themselves under this legislation.
AP1 (Applicant): And in relation to the question of rolling warrants, my learned friend refers to the fact that each warrant must be limited to six months.
AP1 (Applicant): But he doesn't dispute that after the six months, the warrants can simply be renewed.
AP1 (Applicant): So the reality is that there is no dispute to our allegation that there can be, and we would say there are, under this legislation, simply rolling warrants that are renewed at regular six-month periods.
AP1 (Applicant): Then in terms of the, in relation to the question of search terms, and here we have a classic example of my learned friend's trust us and we will keep you safe analysis.
AP1 (Applicant): We know that the commissioners do not have visibility of the search terms that are used.
AP1 (Applicant): That is not a criticism of the commissioners.
AP1 (Applicant): My learned friend says, oh, it's quite improper for Miss Rose to seek to criticize these wonderful commissioners.
AP1 (Applicant): The problem is that they cannot possibly, they cannot possibly supervise the activities of the agencies because there is simply such a vast amount going on and their resources are so limited.
AP1 (Applicant): As the court will recall, I said in my submissions this morning, and you see it in paragraph 71 of the government's own submissions, a total of 15 person days per year devoted by the commissioners to inspection and audit.
AP1 (Applicant): When you are looking at these vast databases of material, simply impossible.
AP1 (Applicant): We know as a matter of fact that they don't have visibility of the search terms.
AP1 (Applicant): We also know, of course, that the terms of the certificate are extremely broad and general.
AP1 (Applicant): In reality, there is no constraint on the breadth of the search terms that may be being used except the judgment of the individual analyst selecting the search term.
AP1 (Applicant): That is the central problem with this regime.
AP1 (Applicant): The same problems occur in relation to the length of retention.
AP1 (Applicant): Now my learned friend points to some provisions in the 2016 Code, in particular paragraph 7.8 and 7.9 of the Code.
AP1 (Applicant): Now we have a difficulty with him relying on the 2016 Code at all, which I'll come back to.
AP1 (Applicant): But leaving that point aside, when you read the provisions of 7.8 and 7.9 together, and
AP1 (Applicant): read those provisions together with what is said in section 15.4 of RIPA that says you
AP1 (Applicant): can keep material that's likely to be useful in the future, the reality is there is no constraint.
AP1 (Applicant): Two years' retention is simply the normal period of retention, but there is no external scrutiny and there is no binding provision that forces destruction at any time.
AP1 (Applicant): Everything always loops back to the same question, the judgment of the analyst who thinks the data is necessary to keep.
AP1 (Applicant): Journalistic material, tab 33 again, this is the Code again and it's paragraphs 4.28
AP1 (Applicant): to 4.31.
AP1 (Applicant): I just want to make this point, which is that it is not clear from the Code whether the definition of journalistic material covers the confidential sources who approach human rights NGOs at all.
AP1 (Applicant): And of course in many cases these will be potential whistleblowers or potential victims of human rights violations.
AP1 (Applicant): The confidentiality of their approaches is absolutely critical, but it's not clear whether they are even covered by the safeguards such as they are in the 2016 Code.
AP1 (Applicant): We were asked some specific questions.
AP1 (Applicant): We were asked the question whether we maintain the case under section 22.
AP1 (Applicant): The answer is that we do.
AP1 (Applicant): I don't seek to add to what we say about it in our written observations, but all of the submissions in our written observations are maintained in relation to section 22, that is paragraphs 146 to 160 of those observations.
AP1 (Applicant): We were also asked by the President about the relevance of the new legislation and I would add to that the 2016 Code.
AP1 (Applicant): Now my learned friend's position on this is entirely contradictory.
AP1 (Applicant): He says the 2016 Act is irrelevant, but then he says we want to try to cure the obvious defects in the regime as it was when these claims were brought by relying on the later Code that was introduced in 2016.
AP1 (Applicant): We say he can't do that.
AP1 (Applicant): We say that the correct position is that this Court is being asked to rule on the compliance of the United Kingdom's arrangements with the relevant articles of the Convention as at the date that the applications were brought and on the facts and the state of national law as it was at that time.
AP1 (Applicant): The relevance of subsequent provisions is only in the sense that I've used them, which is a different sense, not to say whether or not the UK can now rely on them to show compliance ex post facto, but to show that in fact it can't be said that the defective forms of protection with which this application is concerned were the maximum that could potentially be provided because the United Kingdom has itself sought to go further subsequently.
AP1 (Applicant): Now we also say of course that the Code is clearly defective and I've just pointed out some of the reasons why, but we say that my learned friend cannot maintain in the same breath that the 2016 Act is irrelevant and then base his case fundamentally on the Code.
AP1 (Applicant): In relation to the question of the threat, my learned friend says, well, we haven't grappled with the damage that the safeguards we seek to apply would do to national security.
AP1 (Applicant): We absolutely have.
AP1 (Applicant): I specifically made the point in relation to notification ex post facto that it might not be possible in many cases, but the problem with the United Kingdom's legislation is it's not permissible in any case, even where there's no conceivable harm to national security.
AP1 (Applicant): And it's in that context that the IPT cannot provide an effective remedy because nobody has any idea that there's been any breach of their rights.
AP1 (Applicant): So far as the crucial safeguard of prior independent judicial authorization is concerned, it is not even contended by the United Kingdom that that safeguard would cause any harm to national security.
AP1 (Applicant): It's not suggested it would harm national security.
AP1 (Applicant): Finally in relation to the IPT, my learned friend says, oh, how outrageous of Miss Rose to suggest that these very eminent judges lack independence.
AP1 (Applicant): My Lord, it's nothing to do with the quality of the judgments that they have produced.
AP1 (Applicant): The question is simply whether in fact they operate in a way that is institutionally independent of the agencies.
AP1 (Applicant): And for a court to hold a secret meeting with one of the parties to the claims that it is due to here, and in the course of that meeting to agree with that party a protocol for disclosure which is to the advantage of that party, and which is not then disclosed to the other parties, that we say shows a lack of independence.
AP1 (Applicant): Unless I can be of any further assistance, those are our submissions in reply.
AP2 (Applicant): Just in relation to Judge Koskelo's questions on the IPT, what has changed about the IPT's powers between Kennedy and the hearings in this case in 2013 and 2014?
AP2 (Applicant): Nothing.
AP2 (Applicant): Is the IPT a more effective remedy than national courts in relation to applications for declaratory relief concerning violations of the convention?
AP2 (Applicant): Is the government's case that the IPT in this case constituted an effective remedy an attack on this court's decision in burden?
AP2 (Applicant): Yes.
Guido Raimondi (JudgeP): I declare open the public hearing on the merits in the case of Fábián versus Hungary.
Guido Raimondi (JudgeP): The application was lodged with the court on 5 December 2013 under Article 34 of the Convention by a Hungarian national, Mr. Gyula Fábián.
Guido Raimondi (JudgeP): The application was communicated to the government on 25 August 2014.
Guido Raimondi (JudgeP): On 15 December 2015, a chamber of the fourth section delivered its judgment in the case.
Guido Raimondi (JudgeP): It held that there had been a violation of Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 to the Convention and that it was not necessary to examine the
Guido Raimondi (JudgeP): alleged violation of Article 1 of Protocol 1 taken on its own.
Guido Raimondi (JudgeP): On 11 March 2016, the government requested that the case be referred to a grand chamber in accordance with Article 43 of the Convention and the panel of the grand chamber accepted the request on 2 May 2016.
Guido Raimondi (JudgeP): On 22 August 2016, the European Trade Union Confederation was granted leave under Article 36, paragraph 2 of the Convention and Rule 44, paragraph 3 of the rules of court to make written submissions to the court as a third party.
Guido Raimondi (JudgeP): The government are represented by their agent, Mr. Zoltán Tallódi, of the Ministry of Justice,
Guido Raimondi (JudgeP): assisted by Mrs. Mónika Weller of the same ministry as co-agent.
Guido Raimondi (JudgeP): The applicant is represented by Mr. András Grád, counsel, assisted by Mrs. Rebeka Novák,
Guido Raimondi (JudgeP): Mr. Dániel Karsai and Mr. Miklós Máté Kónya, advisors.
Guido Raimondi (JudgeP): I also welcome the judges who are on a study visit to the court from Japan, Moldova, Norway, South Korea and Ukraine.
Guido Raimondi (JudgeP): I would explain that, in addition to interpreting in the two official languages of the court, English and French, interpreting into Montenegrin and Russian has been authorized for the benefit of some of the groups of persons attending this hearing.
Guido Raimondi (JudgeP): That interpreting is not arranged by the court and no transcription of the oral translation will be included in the official record of the proceedings.
Guido Raimondi (JudgeP): Mr. Grád, for the applicant, will speak first, and then Mr. Tallódi for the government.
Guido Raimondi (JudgeP): I call Mr. Grád.
Guido Raimondi (JudgeP): You have the floor, Mr. Grad, please.
AP1 (Applicant): Mr. President, Honorable Members of the Court,
AP1 (Applicant): Under Hungarian law there is a legal regulation which entered into force in 2013 ordering the disbursement of the pensions of those who continue working in the public sphere.
AP1 (Applicant): What is at stake in the present case?
AP1 (Applicant): It is undisputed that the applicant, as a Hungarian employee, month by month paid contributions to the Pension Fund of Hungary in his entire life.
AP1 (Applicant): His regular payments create a property right, namely a legitimate expectation of acquiring his pension.
AP1 (Applicant): That's why Article 1 of Protocol No. 1 is clearly applicable in the present case.
AP1 (Applicant): However, the applicant was unfortunately deprived of his entire pension just because of the fact that he continued working in the public sector.
AP1 (Applicant): One could ask whether this intervention served the general interest.
AP1 (Applicant): The government naturally tried to substantiate this measure by referring to the general interest as such.
AP1 (Applicant): However, in fact, even the government could not rely insofar on any real specific aim sold by this harsh intervention to the applicant's property right.
AP1 (Applicant): In particular, it did not rely on or prove the government any causal link between the total deprivation at issue and the control of use of property in accordance with the general interest.
AP1 (Applicant): This is no wonder, as even according to the government, the Hungarian Pension Fund has year by year more income than expenditure.
AP1 (Applicant): Even the aim referred to by the government in general, allegedly to reduce public debt and help to escape the European Union's excessive deficit procedure, is unfortunately clearly invalid and untrue.