In two very recent judgements, the European Court of Human Rights (hereafter ECtHR) has made several essential points in regards of surveillance conducted by public authorities and its relation with Article 8 of the European Convention of Human Rights (hereafter ECHR).
Article 8 provides that governmental interference with the right to privacy must meet two criteria. First, the interference must be done e conducted “in accordance with the law” and must be “necessary in a democratic society”. Such interference must aim to achieve the protection of the “interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
In previous cases regarding surveillance conducted by public authorities, the ECtHR had already concluded that any interference with the right to respect for private life and correspondence, as enshrined in Article 8 of the ECHR, must be strictly necessary for safeguarding the democratic institutions. However, it has now further clarified its interpretation.
In these recent decisions, the ECtHR concluded that the secret surveillance, as carried out in the manner described in the facts of the cases, violated Article 8 of the Convention.
The Roman Zakharov v. Russia decision, issued on the 4th December 2015, concerned the allegations of the editor in chief of a publishing company that laws enabling the installation of equipment which permitted the Federal Security Service (“the FSB”) to intercept all his telephone communications, without prior judicial authorisation, three mobile network operators interfered with his right to the privacy of his telephone communications.
The Court considered that “a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures, such as, for example, acts endangering national security” must be verified and the interception shall meet the requirements of necessity and proportionality.
The Szabó and Vissy v. Hungary decision, issued on the 12th January 2016, concerned the allegations of members of a non-governmental organisation voicing criticism of the Government that the legislation enabling police to search houses, postal mail, and electronic communications and devices, without judicial authorization, for national security purposes, violated the right to respect for private life and correspondence.
The Court considered that: “the requirement ‘necessary in a democratic society’ must be interpreted in this context as requiring ‘strict necessity’ in two aspects. A measure of secret surveillance can be found as being in compliance with the Convention only if it is strictly necessary, as a general consideration, for the safeguarding the democratic institutions and, moreover, if it is strictly necessary, as a particular consideration, for the obtaining of vital intelligence in an individual operation. In the Court’s view, any measure of secret surveillance which does not correspond to these criteria will be prone to abuse by the authorities with formidable technologies at their disposal.” Consequently, it must be assessed if “sufficient reasons for intercepting a specific individual’s communications exist in each case”.
In both cases, by requiring surveillance activities to be individually targeted, the ECtHR has established that any indiscriminate interception is unacceptable. This is a most welcomed position considering the well-known legislative instruments and initiatives intended to strength the legitimacy of massive monitoring programs in many EU Member States.