The decisions On “Interception of Communication, Call Tapping and Secret Monitoring”
The European Court of Human Rights (“Court”) refers to the following two principles set out in the European Convention on Human Rights (“Convention”) when deciding on the interception of communications, wiretapping telephone calls and secret surveillance: right to an effective remedy and right to respect for private and family life.
Article 8 of the Convention under the heading “Right to respect for private and family life”, provides that everyone has the right to respect for his private and family life, his home and his correspondence. The Convention provides that there can be no interference by a public authority with the exercise of this right, except insofar as it is lawful and necessary in a democratic society in the interest of security. national security, public safety or 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 accordance with Article 13 of the Convention under the title “Right to an effective remedy”, any person whose rights and freedoms set out in this Convention are violated must have an effective remedy before a national authority, even if the violation was committed by persons acting in an official capacity Therefore, the court assesses whether there is a violation of the rights relating to these articles in its decisions, within the framework of the above principles.
In this article, regarding access to personal data, the decisions Klass and others v. Germany, Wisse v. France and MustafaSezgin Tanrıkulu v. Turkey rendered by the ECHR will be summarized.
1. Klass and others v. Germany
In this case, the applicants, five German lawyers, complained in particular of German legislation empowering the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them.
The Court concluded in particular that the powers of secret surveillance of citizens, characterizing the police state, are tolerable under the Convention only to the extent strictly necessary to safeguard democratic institutions. Noting, however, that democratic societies today find themselves threatened by highly sophisticated forms of espionage and by terrorism, so that the State must be able, in order to counter these threats effectively, to carry out secret surveillance of subversive elements operating within its jurisdiction, the Court held that the existence of legislation granting powers of secret surveillance over mail, post and telecommunications was, in exceptional circumstances, necessary in a democratic society in the interests of the national security and/or for the prevention of disorder or crime.
The Court held that there had been no violation of Article 8 of the Convention, finding that the German legislature was justified in regarding the interference resulting from the impugned legislation with the exercise of the right guaranteed by Article 8 § 1 as necessary in a democratic society in the interest of national security and for the prevention of disorder or crime (Article 8 § 2).
You can access the decision by this link; KLASS AND OTHERS v. GERMANY (coe.int)
2. Wisse v. France
Suspected of having committed armed robbery, the two applicants were arrested and placed in pre-trial detention. By virtue of a warrant issued by the investigating judge, the telephone conversations between them and their relatives in the prison visiting rooms were recorded. The applicants unsuccessfully sought the annulment of the procedural documents relating to the recording of their conversations. They maintained that the recording of their conversations in the prison visiting rooms had constituted an interference with their right to respect for their private and family life.
The Court noted in particular that the systematic recording of conversations in a visiting room for purposes other than prison security deprived visiting rooms of their sole raison d’être, namely to allow prisoners to preserve a certain private life, including secret conversations with their families.
The Court held that there had been a violation of Article 8 of the Convention, considering that French law did not indicate with sufficient clarity how and to what extent the authorities could interfere in the private lives of detainees, nor the scope and procedures for exercising their discretionary powers in this area. Consequently, the applicants did not benefit from the minimum degree of protection required by the rule of law in a democratic society.
You can access the decision by this link; WISE c. FRANCE (coe.int)
The applicant complained about a 2005 domestic court decision authorizing the interception of communications of anyone in Turkey, including himself, for approximately one and a half months. He alleged in particular that the interception measures constituted an abuse of the national legislation in force at the time. He also alleged that he had been deprived of an effective judicial remedy because the national authorities had refused to investigate his complaints concerning the interception of his communications.
The Court found a violation of Article 8 of the Convention, finding that the interception order in this case was not in accordance with the law. The Court also found a violation of Article 13 (right to an effective remedy) of the Convention.
You can access the decision by this link; MUSTAFA SEZGİN TANRIKULU c. TURKEY (coe.int)
Accordingly, it appears from the above-mentioned decisions that the Court relies on Article 8 and Article 13 of the Convention to assess the concrete facts concerning the disclosure of the interception of communications, telephone tapping and secret surveillance. In making this assessment, the Court took into account the requirements of a democratic social order in these cases. At the same time, the Court said states should take the necessary steps to prevent such personal data breaches.