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Phone interceptions in light of article 8 ECHR

I) Introduction

 

 

Phone interceptions are used across Europe to fight crime and to avert dangers to state security. They take two forms: Individual monitoring targets a specific person or group of persons, or aims at intercepting communications from and to a specific set of premises or phones. Strategic monitoring is the process of intercepting a large number of communications and screening them for certain cue words or key phrases.

While many of the landmark judgments specifying rules and requirements for phone interceptions concerned individual monitoring, the European Court of Human Rights has underscored that the principles set out in its jurisdiction also apply to strategic monitoring.

Phone interceptions are not generally inconsistent with the ECHR. Some international treaties even impose a duty on contracting states to employ special investigative measures such as phone interceptions to combat certain forms of crime. The Council of Europe ‘Criminal Law Convention on Corruption’ obliges signatory states to adopt ‘such legislative measures as may be necessary (…)including those permitting the use of special investigative techniques’ to facilitate the gathering of evidence and confiscation of proceeds’ (para 23) in corruption cases. Theexplanatory report to this Convention clarifies that ‘this provision includes an obligation for the parties to introduce special investigative techniques’ such as ‘wire tapping, bugging, interception of telecommunications’ (para 114)

While the European Court of Human Rights acknowledges that phone interceptions are an important and sometimes necessary tool for fighting terrorism and other forms of grave crime, it has also pointed to the risk of arbitrariness involved in the use of measures which are usually employed without the affected person noticing it. As a consequence of the particularity that phone interceptions are undertaken in secret, the Court treats them differently from other interferences with Convention rights in two ways:

  • The requirements for justifications of phone interceptions pursuant to article 8 para 2 ECHR are particularly high

 

  • The threshold for applications based on alleged violations of the ECHR by phone interceptions is lower than in case of other purported infringements

 

II) Requirements for the justification of phone interceptions

1) Interference with article 8 para 1 ECHR

Phone interceptions interfere with the right to private life and the right to correspondence under article 8 para 1 ECHR; they may also interfere with the right to home (Klass v Germany, para 41. In many cases, the European Court of Human Rights does not elaborate on the distinction between the limbs of article 8 ECHR but confines itself to stating that rights under article 8 ECHR are interfered with (see for example Kennedy v UK, para 129)

As the Court has held in Malone v UK, it also amounts to an interference with article 8 paragraph 1 when authorities do not take note of the content of phone conversations, but only record which phone numbers are called from a certain phone and how long the conversations last (so called ‘metering’).

Recording phone conversations still constitutes an interference with the right to correspondence under article 8 ECHR if one of the participants of the conversation agrees to the recording. In A v France, an informer had approached the police and claimed that Mrs A had tried to hire him as a contract killer. The informer agreed to call Mrs A in presence of a police officer and to involve her in a discussion about the envisaged murder. The conversation, which was led from a phone in the office of the police officer, was recorded as had been agreed with the informer beforehand. The ECtHR held that there had been an interference with the right to correspondence. The police officer, who formed part of the ‘public authorities’ had been crucial in conceiving and carrying out the plan; the conversation did not lose its private character because one of the participants agreed to the recording.

 

 

2) Safeguards

2.1. Overview

As said above, the ECtHR has held that the risk of arbitrariness involved in the use of measures which are applied in secret calls for measures which ensure an effective protection of the rights to private life and correspondence. The Court has therefore developed a number of safeguards which have to be put in place to curb the risk of abuse of phone interceptions. These measures can be divided into requirements regarding the legal basis for authorising wire-tapping and safeguards applying the phase in which the interception of communications is carried out.

They may be summarised as follows:

LEGAL BASIS FOR AUTHORISING PHONE INTERCEPTIONS
  • There has to be a legal basis for the interception of communications
  • this legal basis has to be publicly accessible
  • it has to specify:

    • the nature of offences that give rise to an inception order
    • the category of persons liable to have their phone tapped
    • a limit on the duration of phone tapping
    • the procedure to be followed for examining, using and storing the data obtained
    • precautions to be taken when communicating the data to other parties
    • the circumstance under which the recordings or tapes may or must be erase
  • precautions have to be taken to protect privileged communication between attorney and client

 

SAFEGUARDS REGARDING THE WAY THE PHONE INTERCEPTION IS CARRIED OUT
  • There have to be effective control mechanisms to ensure that the law is complied with
  • the oversight has to be in line with generally accepted democratic principles
  • the oversight has to be carried out by an authority independent from the one which carries out the measure

 

2.2 Legal basis for authorising phone interceptions

IN ACCORDANCE WITH THE LAW

In line with the general requirements for the justification of interferences with interests protected by article 8 ECHR, phone interceptions must be based on a law. The ECtHR interprets the notion ‘law’ substantively rather than formally (Kruslin v France, para 29). Thus, the term law encompasses also by-laws, regulations or other provisions which rank lower than statutes. Case law by courts of the respondent state or a settled interpretation of a certain provision has to be taken into account when scrutinizing whether there was a legal basis for wire tapping. In Kruslin v France, an Investigative Judge had ordered that a phone be tapped. Conversations which the applicant had been involved in had been recorded and the recordings had played an important role in the applicant’s conviction. The French criminal procedure code in force that the time had not expressly provided for phone interceptions. However, it contained a provision according to which the investigative judge could undertake (or order to undertake) ‘any investigative measure he considers necessary’. It was settled case law of French courts that this provision empowered a judge to order phone tapping.

The ECtHR underscored that it was primarily the task national authorities, in particular the courts, to interpret domestic law. Since a settled juris-diction existed in France, it was not for the ECtHR to decide that the interpretation of French law by French courts was wrong. The Court therefore held that there had been a legal basis for the phone tapping (yet it found a violation of article 8 ECHR, since the law had not been sufficiently precise and had not provided effective safeguards against abuse).

 

ACCESSIBLE

The law justifying the phone interception has to be accessible, i.e. citizens must be able to obtain information on the circumstances in which communications may be intercepted. In Liberty v UK, the ECtHR has dealt with the requirement of accessibility in a case concerning the (alleged) interception of phone conversations. The applicants were British and Irish civil liberties organisations, who communicated regularly on certain legal questions. They complained that conversations they had had over the phone had been intercepted regularly over an extended period of time using technical devices which were able to intercept a large number of communications at the same time and screen them for certain key-words. According to the applicants, there was no sufficient legal basis for these interceptions.

British law in force at the material time foresaw two forms of phone interceptions. On the one hand, communications by certain persons or from a certain set of premises could be intercepted. On the other hand, the tapping of external communication was provided for. Warrants authorizing the phone interceptions had to be issued by the Secretary of State or an authorized delegate of high rank. In the case of external communication, the Secretary of State was under a duty to issue a ‘certificate’ describing the material which he considered necessary to be intercepted. The law also stipulated that the Secretary of State make arrangements to secure that only the material described in the warrant be read, listened to or looked at and to make arrangements regarding the storage, deletion, copying of material. Neither the warrant nor the certificate or the arrangements to ensure compliance with the warrant were made public.

The applicants complained that this set of rules did not provide a clear and accessible legal basis as required by the jurisdiction of the ECtHR. The British Government argued that there were internal guidelines, practice codes and rules governing the handling of the intercepted material etc.

The Court pointed out that the laws and rules regarding the interception of communications have to be publicly accessible for the sake of public scrutiny. It was not convinced by the Government’s argument that publishing these arrangements might impede the efficacy of the measures. It pointed to its decision in Weber and Saravia v Germany and to the German legal framework, in which these arrangements were detailed in a publicly available form

 

FORESEEABLE AND NECESSARY IN A DEMOCRATIC SOCIETY

 

The law on which the phone interception is based has to set out clearly in which circumstances and subject to which conditions communications may be intercepted. The European Court of Human Rights has established criteria a law has to satisfy so as to be sufficiently precise and to provide safeguards against arbitrary use. While this is chiefly a consequence of the general requirement that laws prescribe the conditions for interferences in a foreseeable manner, the Court has sometimes examined the question of sufficient safeguards against arbitrariness under the heading ‘necessary in a democratic society’ or merged the question of foreseeability and necessity (e.g. Kennedy v UK, para 155)

 

CATEGORY OF CRIME

The law providing the legal basis for phone interceptions has to specify the categories of crimes which may give rise to a phone interception. This can be done in (at least) two forms:

  • The relevant crimes are defined according to specific criteria
  • A catalogue of specific crimes which may prompt a phone interception is included in the law

In Kennedy v UK, the European Court of Human Rights has scrutinized the (strategic) monitoring of phone conversations by British authorities. The British legal framework foresees that phone interceptions may inter alia be authorized ‘for the purpose of preventing or detecting serious crime’. Serious crime is defined as an offence for which a person who has reached the age of 21 and who has no prior convictions could reasonably be expected to be sentence to three years of imprisonment or more. The Court refuted the applicant’s argument that this provision was not sufficiently precise. It asserted that foreseeability did not require an exhaustive list of offences which are apt to justify phone interceptions and held that the interpretation of the term serious contained in the law gave citizens sufficient information as to the circumstances in which phone interceptions could be authorized (para 160).

As may be inferred from the above judgment, foreseeability of phone interceptions may also be ensured by listing all offences for the investigation of which the interception of communication may be ordered.

Specifying the crimes – not matter in which way – only satisfies the requirement that sufficient safeguards be built in the law if it curbs the number of potential phone interceptions effectively. In Iordachi v Moldava, the Court dealt with the Moldovan ‘Operational Investigative Activities Act’ of 1994. This act provided that phone interceptions could be undertaken for the investigation of serious, very serious and exceptionally serious offences and the Criminal Code contained a definition of these terms. While the category of crimes liable to give rise to an interception was thus clearly defined, the Court criticized that ‘more than half of the offences provided for in the Criminal Code fall within the category of offences eligible for interception warrants’ (para 44)

 

 

CATEGORIE OF PERSONS

The law has also to define the category of persons liable to be targeted by phone interceptions. This question is partly overlapping with the definition of the category of crimes. In Iordachi v Moldova, the European Court of Human Rights noted that the language of the law, which prescribed that ‘suspects, defendants or other persons involved in a crime’ not indicate with sufficient clarity, which category of persons might be affected by phone interceptions. In particular, the Court pointed out that there was no definition of the term ‘other persons involved in a criminal offence’ (para 44)

By way of contrast, the Court found the German G 10, the law which governs phone interceptions by German intelligence agencies, to be compliant with the requirements of article 8 ECHR (Klass v Germany, para 51 read with para 17). Pursuant to this law, persons who could be targeted by interceptions were "the suspect or such other persons who are, on the basis of clear facts (bestimmter Tatsachen), to be presumed to receive or forward communications intended for the suspect or emanating from him or whose telephone the suspect is to be presumed to use"

 

DURATION

Protection against arbitrary or excessive use of phone interceptions requires that the law, on which the phone tapping is based, limits the duration of the measure. The European Court of Human Rights has not established a general maximum duration for phone interceptions. InAssociation for European Integration and Ekhimdziev v Bulgaria, it held a maximum duration of two months with a possibility of extension to up to six month on the basis of a fresh application and warrant to be in accordance with the Convention (however, the Court found for other reasons that the Bulgarian ‘Special Surveillane Means Act of 1997 infringed the right to private life under article 8 ECHR).

In  Weber and Saravia  v Germany, it found an interception of up to three months with the possibility of renewal for another three months to be in compliance with article 8 ECHR. (para 98)

In Kennedy v UK, it ruled that the British ‘Regulation of Investigatory Powers Act, which foresees interceptions for a period of six months with the possibility of renewal satisfied the requirements for necessary safeguards. On the other hand, the Court criticized in Iordachi v Moldova that the relevant provisions of Moldovan law limited the duration of phone interceptions to six month, but allowed for renewals (para 45). This appears to indicate that the Court undertakes an overall assessment of the relevant provisions rather than just checking the requirements it has established in its jurisdiction.

 

 

 

PROTECTION OF LAWYER-CLIENT PRIVILEGE

The legal basis for phone interceptions has to provide rules ensuring that information falling under the lawyer-client privilege is not intercepted. The right to legal assistance by a lawyer is a cornerstone of democratic societies. Anybody interested in consulting a lawyer should have the possibility to do so under conditions which allow for a free exchange of information (Campbell v UK, para 46). This right would lose value if persons conferring with their lawyers would have to fear that the conversation might be intercepted.

Therefore, measures have to be taken to secure the protection of privileged conversations. Including in the law a rule to the effect that conversations between lawyers and their clients is not tapped is not a  sufficient means to safeguard the confidentiality of conversations between lawyers and their clients It also has to become clear which steps are taken to ensure that this rule is respected in practice (Iordachi v Moldova, para 50). In Kopp v Switzerland, the European Court of Human Rights found the respondent state in violation of article 8 ECHR, because the law and practice of phone tapping did not ensure that the exchange of information falling under the lawyer-client privilege was protected. While Swiss law provided that phones of lawyers were not to be tapped, conversations between lawyers and clients were intercepted. The Swiss government argued that according to Swiss law certain pieces of information exchanged between lawyers and their clients were not protected by lawyer-client confidentiality (this concerned for example information regarding the handling of funds). Therefore, the Swiss authorities tried to distinguish between privileged information, which did not become part of the case file, and not privileged information, which could be added to the case file and considered in court. The person tasked to sort between these two types of information was a lawyer working with the post department, which was state-owned and in charge of telecommunications at the material time. The Court criticized this arrangement as generally not sufficiently clear with regard to procedure to distinguish privileged information from non-privileged information and stated that ‘in practice, it is, to say the least, astonishing that this task should be assigned to an official of the Post Office’s legal department, who is a member of the executive, without supervision by an independent judge, especially in this sensitive area of the confidential relations between a lawyer and his clients, which directly concern the rights of the defence.’ . As an example to the contrary, the ECtHR approved of the precautions taken in Dutch law in Aalmoes v The Netherlands. Dutch law distinguished whether the lawyer was a suspect or a third-party. In the instance the lawyer was a suspect, his phone could be tapped, but material protected by the lawyer client privilege had to be sorted out. A representative of the bar association was involved in the decision which material was protected. In case the lawyer was not a suspect, his phone could not be intercepted. Communications falling within the ambit of the lawyer-client privilege, which were intercepted (for example because the suspect in a case called a lawyer) had to be screened by a prosecutor. The prosecutor ordered that privileged information be destroyed. Only information which was not privileged could be taken to the file upon approval by a judge.

 

 

 

 

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