ECHR Ordinance of September 13, 2018 on the case of the “Big Brother Watch and Others Non-Profit Organization v. United Kingdom” (application No. 58170/13 and others).
In 2013, the applicant organization and other applicants were assisted in the preparation of applications. Subsequently, the applications were merged and communicated to the United Kingdom.
The case is a application about compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms of Covert Surveillance, including indiscriminate (mass) interception of external negotiations. The case has violated the requirements of Articles 8 and 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The case did not violate the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms in relation to the mode of information exchange between intelligence services.
On February 4, 2019, the Collegium of the Grand Chamber of the European Court decided to satisfy the petition for revision of this Resolution in the Grand Chamber, therefore the Resolution of September 13, 2018 did not enter into force, since it will be revised.
THE CIRCUMSTANCES OF THE CASE
The applicants, several companies, charities, non-profit organizations and individuals, filed three complaints with the European Court, opposing the limits and scope of the electronic surveillance programs used by the UK authorities. All applicants believed that, due to the nature of their activities, their emails could very likely be either intercepted by the intelligence services of the United Kingdom, received by the intelligence services of the United Kingdom after they were intercepted by foreign authorities, or / and received by the UK authorities from communications service providers (CSPs)).
The applicants claimed that the following three regimes did not comply with the provisions of Article 8 of the Convention:
- mass interception of information in accordance with paragraph 4 of Article 8 of the Law on the regulation of investigative powers (RIPA);
- information exchange between intelligence services;
- Acquisition of data transferred in accordance with Chapter II of the Law on the regulation of investigative powers.
The applicants in the third complaint (from among those whose proceedings were consolidated by the European Court) each filed a separate complaint with the Investigation Tribunal (IPT), alleging that there had been a violation of Articles 8, 10 and 14 of the Convention. Regarding the interception of external negotiations on the basis of a warrant received in accordance with paragraph 4 of Article 8 of the Law on the Investigation of Investigative Powers, the Investigation Authority Tribunal found that the regime for issuing a warrant and accompanying guarantees were sufficiently consistent with the requirements of the European Court "Weber and Saravia v. Germany" (Weber and Saravia v. Germany) (complaint No. 54934/00, ECHR 2006-XI), since the interference must "comply with the law" for the purposes of Article 8 of the Convention. The Investigation Tribunal, however, found two “technical” violations of Article 8 of the Convention, concerning in one case the retention of lawfully intercepted materials for a longer period than allowed by law, and in the second - the inappropriate performance of the procedure for selecting materials for viewing. The first two complainants did not appeal to the Tribunal for investigative powers.
QUESTIONS OF RIGHT
Regarding compliance with Article 35 of the Convention (exhaustion of domestic remedies). The Investigation Tribunal was a special court whose jurisdiction exclusively concerned complaints of unlawful interference in the negotiations of persons as a result of actions approved by the Law on the regulation of investigative powers. The Investigation Tribunal dealt with issues related to both general compliance with the information interception regime and possible violation of the rights of individual applicants. The persons involved in issuing and executing a warrant for intercepting information were required to hand over to the Tribunal on the issues of investigative powers all the documents requested by them, including materials relating to internal data processing procedures that could not be published for reasons of national security, regardless of whether whether these documents defend the position or contradict it. The investigative powers tribunal could, at its own discretion, hold oral public hearings, if this was possible, and in a closed court session, it could instruct a lawyer from this tribunal to make statements from plaintiffs whose interests could not be represented. After reviewing a complaint, the Investigation Tribunal could award compensation and issue any other ruling, including cancellation or cancellation of an interception warrant and a requirement to destroy any records. In reviewing the complaint filed by the applicants to the third joint complaint, the Investigation Tribunal used all of these powers in the interests of the complainants.
Considering both the way in which the Investigation Tribunal exercised its functions over the past 15 years, and the actual impact that decisions of this court have had on United Kingdom law and case law expressed in Kennedy v. United Kingdom (Kennedy v. United Kingdom) of May 18, 2010, complaint no. 26839/05 concerns about the effectiveness of the Tribunal’s investigative powers as a remedy in relation to complaints about the observance of the general secret regime observations were no longer justified.
The European Court noted that when the Investigation Tribunal found the covert surveillance regime not in compliance with the Convention, the UK authorities ensured that any deficiencies would be reviewed and corrected. In this regard, although the evidence submitted by the UK authorities could not yet demonstrate the existence of an “imperative obligation” requiring the authorities to correct any violation found by the Investigation Tribunal, the Court nevertheless agrees that the practice of certain legal consequences of the decisions of the tribunal regarding the presence in the legislation of the United Kingdom of inconsistencies of the Convention was sufficiently clear to confidently consider Which remedy is effective.
However, the Court agrees that when the claimants for the first two complaints filed their complaints, they could not be blamed for not referring to the Kennedy v. United Kingdom case mentioned above as a reason for assuming that the Tribunal on investigative powers was not an effective remedy for a complaint concerning the general application of the Convention to a covert surveillance regime. In view of the foregoing, the European Court ruled that there were special circumstances that excused these applicants from having to first submit their complaints to the Tribunal on investigative powers.
Regarding compliance with Article 8 of the Convention. (a) Clause 4 of Article 8 of the Law on the Regulation of Investigative Powers (Regime). (i) General principles concerning covert surveillance measures, including interception of negotiations. In its case-law on the interception of negotiations in a criminal case, the European Court of Justice has developed six minimum requirements that should be reflected in legislation in order to avoid abuse of authority:
- an indication of the nature of the offense, which may cause the issuance of a warrant for interception of data;
- determination of the category of persons whose negotiations may be intercepted;
- setting limits on the duration of the period of interception of data;
- determination of the procedure for research, use and storage of the obtained data;
- precautions when transferring data to third parties;
- determining the circumstances in which the intercepted data can and should be erased or destroyed.
In the judgment of the Grand Chamber of the European Court of Justice in the case of Roman Zakharov v. Russia (Roman Zakharov v. Russia) (of December 4, 2015, complaint No. 47143/06), the European Court confirmed that these six requirements are also applicable in cases where interception of data is carried out in the interests of national security. However, when determining whether the applicable legislation contradicted Article 8 of the Convention, the European Court should also take into account the measures for overseeing the implementation of the covert surveillance procedure, any notification mechanism and remedies provided for by the relevant state legislation.
The review and supervision of the implementation of the covert surveillance procedure can be applied in three cases: when the observation is established for the first time, during the observation and at the conclusion of the observation. As regards the first two cases, the very nature and logic of covert observation require that not only supervision, but also revision should be carried out without the knowledge of the person being monitored. Therefore, since the said person had no opportunity to use an effective remedy on his own initiative or to directly participate in the review procedure, it was important that the established procedures themselves would contain appropriate and appropriate guarantees to protect the rights of this person. In areas where it is so easy to abuse powers in individual cases and where such abuse could have serious consequences for a democratic society as a whole, it was generally advisable to entrust the supervision to the judge, since judicial control implies the best guarantees of independence, impartiality and due process.
With regard to the third stage, after the cessation of observation, the issue of subsequent notification of observation was inextricably linked to the effectiveness of judicial remedies and, consequently, to the existence of effective safeguards against the abuse of monitoring powers. In fact, there was little opportunity for interested individuals to apply to the courts if these persons were not informed about the measures taken without notifying them, and thus they could appeal against the legality of observing them retrospectively or as an alternative, if any person suspecting that he or she is being covertly observed, could have applied to a court whose jurisdiction did not depend on notifying the object of observation about the measures taken.
(ii) Rule to be applied. The European Court rejected the applicants ’argument that the six minimum requirements should be“ improved ”by adding the requirement of having objective evidence of reasonable suspicion regarding the persons being collected about prior independent judicial authorization to issue a warrant for interception of data and the subsequent notification of the object observations about the measures taken.
It was obvious that indiscriminate interception of data was an important way to achieve legitimate goals, especially considering the current level of danger from both terrorist organizations and serious crimes. Indiscriminate interception, by definition, has no purpose, and establishing the requirement of having “reasonable suspicion” will make the operation of this scheme impossible. Similarly, the requirement of "follow-up notification" assumed the presence of clearly defined objects of observation, which simply did not exist in the non-selective interception of data. Although the European Court considered the requirement for obtaining a judicial authorization to be a substantial guarantee and, perhaps, even “best practice”, this permission in itself was neither necessary nor sufficient to ensure compliance with the requirements of Article 8 of the Convention. Rather, it was necessary to take into account the actual functioning of the data interception system, including the system of checks and balances in the exercise of authority, as well as the presence or absence of any manifestations of actual abuse of authority.
Therefore, the Court will consider an excuse for any intervention with reference to the six minimum requirements, adapting them, where necessary, to the application of a regime for the non-selective interception of information. The Court will also take into account the additional relevant factors that it identified in the above-mentioned Roman Zakharov v. Russia case.
(iii) Limits to the use of covert surveillance measures. Referring to the first two minimum requirements, the European Court considered that the relevant legal situation was quite clear, provided citizens with a fairly precise definition of the circumstances and conditions under which a warrant could be issued on the basis of paragraph 4 of Article 8 of the Law on the regulation of investigative powers. Nothing suggested that the Minister (Secretary of State) authorized the warrant without proper consideration of the case. The authorization (sanction) procedure was subject to independent review, and the Investigation Tribunal had extensive jurisdiction to consider any complaint of unlawful interception of information. The European Court agreed that the provisions on the duration and renewal of interception orders, the provisions for storing, evaluating, researching and using the intercepted data, the provisions on the procedure for transmitting the intercepted data to other interested parties and the provisions on the destruction of intercepted material were quite clear to provide proper safeguards against abuse of authority.
With regard to the selection of negotiations for analysis, when they were intercepted and filtered, those that were not excluded from the real-time study were subjected to further verification: first, computer-based simple filters (such as email addresses or telephone numbers) and initial search criteria, and subsequently through the use of integrated search engines. Filters and search criteria do not have to be published, there is also no need to list them in the requested data interception order. However, the search criteria and filters used to process the intercepted information should be independently verified, this guarantee does not appear to have been provided for in paragraph 4 of article 8 of the Law on the regulation of investigative powers. In practice, the only independent verification of the process of filtering and selecting intercepted information was a post factum check by the Commissioner for Intercepting Negotiations and, if submitted a corresponding petition, a check by the Tribunal for Investigative Powers. When indiscriminately intercepting data, when the decision to intercept information was not essentially limited to the conditions of the order, the guarantees applicable to filtering and selecting information for research should have been more carefully worked out.
The European Court considered that the intelligence services of the United Kingdom took their convention obligations seriously and did not abuse their authority under paragraph 4 of Article 8 of the Law on the regulation of investigative powers. However, the study of these powers revealed two points of doubt: first, the lack of a general understanding of the entire information selection process, including the selection of interception objects, the establishment of selection criteria and search criteria for filtering the intercepted data and the selection of materials for the work of analysts, and, secondly, the absence of any real guarantees applicable to the selection of communication data for the study. In view of these shortcomings, the European Court concluded that the regime established by paragraph 4 of Article 8 of the Law on the regulation of investigative powers did not meet the requirement of “quality of law” and could not ensure that “interference” would be “necessary in a democratic society”.
The case was a violation of the requirements of Article 8 of the Convention regarding the provisions of the relevant legislation of the United Kingdom (adopted by five votes in favor, with two - "against").
(b) Mode of information exchange between intelligence services. In this case, the European Court for the first time was required to assess for compliance with the Convention the mode of information exchange between intelligence services. In the present case, the intervention was not due to the fact of the interception of the negotiations, but to the interception of data by the intelligence services by the authorities of the respondent state, their subsequent storage, analysis and use. In order to avoid abuse of authority, the conditions under which the intercepted material could be requested from the intelligence services of foreign states should be established in the legislation of the respective state. Although the circumstances under which such a request could have been made might not coincide with the circumstances under which the state itself could intercept information, they nevertheless should have been described clearly enough to prevent States from using this the authority not to comply with the provisions of its legislation or its convention obligations.
The European Court is convinced that the legislation of the United Kingdom contained provisions on the procedure for requesting intelligence information from the intelligence services of other states and that these provisions were sufficiently accessible and pursued several legitimate aims. In addition, the European Court considered that the relevant legislation and legislation of the United Kingdom explained with sufficient clarity the procedure for submitting a request either to intercept information or to transfer the received information to foreign intelligence services. There was no evidence of any serious violations in the application and implementation of this procedure.
The case did not violate the requirements of Article 8 of the Convention in relation to the mode of information exchange between intelligence services (taken by five votes "for" with two - "against").
(c) The measures provided for in Chapter II of the Law on the regulation of investigative powers. The measures provided for in Chapter II of the Law on the Regulation of Investigative Powers allowed certain public authorities to receive forwarding data from communication service providers (CSPs). United Kingdom law, as interpreted by the United Kingdom authorities in the light of the judgments of the European Union Court of Justice (European Court of Justice) (CJEU), required that any regime that allowed authorities to access data held by communications service providers would limit such access to the aim of combating "serious crimes" and that such access should be carried out only by prior permission of the court or an independent administrative authority. Since the regime provided for in Chapter II of the Law on the Regulation of Investigative Powers allowed access to intercepted data to combat crime (rather than “serious crimes”), unless the interception was requested to identify journalistic sources of information, the regime did not provide prior permission court or an independent administrative authority, it could not be considered as complying with the law within the meaning of Article 8 of the Convention.
The case was violated in accordance with the requirements of Article 8 of the Convention in relation to the measures provided for by Chapter II of the Law on the regulation of investigative powers (taken by six votes in favor, with one - against).
Regarding compliance with Article 10 of the Convention. The claimants for the second complaint, the journalist and the news-gathering organization, appealed against the interference with confidential journalistic data, due to the application of both paragraph 4 of Article 8 and Chapter II of the Law on the regulation of investigative powers.
(a) The measures provided for in paragraph 4 of Article 8 of the Law on the regulation of investigative powers. The surveillance measures applied in accordance with paragraph 4 of Article 8 of the Law on the Regulation of Investigative Powers were not aimed at controlling journalists or disclosing journalistic sources of information. Usually, the authorities will find out that the intercepted information belongs to journalistic data, already while studying the information received. Interception of such information in itself cannot be characterized as a particularly serious interference with freedom of expression. However, the intervention is considered more serious if the information has been selected for the study, and will be justified “only if there is a prevailing public interest” in conjunction with sufficient guarantees regarding both the circumstances in which the information could be specially selected for the study, and to protect confidentiality if the information is selected specifically or otherwise for the study.
Of particular concern was the fact that there were no requirements, either restricting the powers of the intelligence services to search for confidential journalistic or other material (for example, using the journalist’s e-mail address as a marker), or obliging analysts to consider when selecting information for research whether the materials mentioned could have been affected or not. Consequently, apparently, analysts could search and investigate without limitation both the essence of the intercepted information and the data associated with it.
In view of the potential deterrent effect that any alleged interference with the confidentiality of journalists ’talks and, in particular, communication with sources of information, can have freedom of the press, in the absence of any published provisions that would restrict the ability of intelligence services to search and investigate such material, in cases caused by the “prevailing public interest requirement”, the Court considers that there has been a violation of Article 10 of the Convention.
(b) The measures provided for in Chapter II of the Law on the regulation of investigative powers. Considering the applicants' complaint of violation of Article 8 of the Convention, the European Court concluded that the regime provided for in Chapter II of the Law on the regulation of investigative powers provided enhanced protection when interception of data was carried out in order to establish the source of journalistic information. Nevertheless, these provisions were applied only if the purpose of the relevant petition was to determine the source, therefore they were not applied in each case when the interception of the journalist’s negotiations was requested or when such indirect interference was likely. In addition, in cases involving access to the negotiations of journalists, there were no special provisions that would restrict access to the purpose of combating "serious crimes". Therefore, the Court concludes that the regime in question could not be considered “lawful” in order to complain about a violation of Article 10 of the Convention.
The case was violated in accordance with the requirements of Article 10 of the Convention in relation to the measures provided for by paragraph 4 of Article 8 of the Law on the Regulation of Investigative Powers (adopted by six votes “for” with one - “against”).
The European Court dismissed as manifestly unfounded complaints of violation of Articles 6 and 14 of the Convention, considered in conjunction with Articles 8 and 10 of the Convention.
In application of Article 41 of the Convention. The applicants did not submit any claims for just satisfaction.