Decisions About “Interception of Communications, Phone Tapping and Secret Surveillance”
The European Court of Human Rights (“Court”) refers to the following two principles found in the European Convention on Human Rights (“Convention”) when determining about interception of communications, phone tapping and secret surveillance: Right to an Effective Remedy and Right to Respect for Private and Family Life.
Article 8 of the Convention under the title of “ 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 held that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in 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.
Pursuant to the Article 13 of the Convention under the title of “Right to an Effective Remedy”, everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity Therefore, the court evaluates whether there is a violation of rights regarding these articles in its decisions, within the framework of the above-mentioned principles.
In this article, concerning access to personal data, Klass and Others v. Germany, Wisse v. France, and Mustafa Sezgin Tanrıkulu v. Turkey decisions adjudicated by ECHR will be summarized.
1. Klass and Others v. Germany
In this case the applicants, five German lawyers, complained in particular about legislation in Germany 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 reached in particular that powers of secret surveillance of citizens, characterizing as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. Noting, however, that democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction, the Court considered that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications was, under exceptional conditions, necessary in a democratic society in the interests of 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 to consider the interference resulting from the contested legislation with the exercise of the right guaranteed by Article 8 § 1 as being
necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 § 2).
You may access the Decisionby this link; KLASS AND OTHERS v. GERMANY (coe.int)
2. Wisse v. France
The two applicants were arrested on suspicion of committing armed robberies and placed in pre-trial detention. Under a warrant issued by the investigating judge, the telephone conversations between them and their relatives in the prison visiting rooms were recorded. The applicants made an unsuccessful application to have the steps in the proceedings relating to the recording of their conversations declared invalid. They argued that the recording of their conversations in the prison visiting rooms had constituted 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 detainees to maintain some degree of private life, including the privacy of conversations with their families.
The Court held that there had been a violation of Article 8 of the Convention, finding that French law did not indicate with sufficient clarity how and to what extent the authorities could interfere with detainees’ private lives, or the scope and manner of exercise of their powers of discretion in that sphere. Consequently, the applicants had not enjoyed the minimum degree of protection required by the rule of law in a democratic society.
You may access the Decisionby this link; WISSE c. FRANCE (coe.int)
3. Mustafa Sezgin Tanrıkulu v. Turkey
The applicant complained about a domestic court decision of 2005 allowing the interception of communications of anyone in Turkey, including himself, for about a month and a half. He alleged in particular that the interception measures amounted to abuse of the national legislation in force at the time. He also claimed that he had been denied an effective judicial remedy because the national authorities had refused to carry out an investigation into his complaints about the interception of his communications.
The Court held that there had been a violation of Article 8 of the Convention, finding that the interception order in the present case was not in accordance with the law. The Court also held that there had been a violation of Article 13 (right to an effective remedy) of the Convention.
You may access the Decision by this link; MUSTAFA SEZGİN TANRIKULU v. TURKEY (coe.int)
As a result, it is seen in the above-mentioned decisions that the Court takes the 8th article and 13th article of the Convention as a basis when evaluating the concrete facts regarding disclosure of interception of communications, phone tapping and secret surveillance. While making this assessment, the Court has taken into account the requirements of a democratic social order in these cases. At the same time, the Court stated that states should take the necessary measures in order to prevent such personal data breaches.
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Authors: Bilge Derinbay, Hande Ülker Pehlivan
Contact: bilge.derinbay@nsn-law.com