Raising individuals’ awareness
error to be serious, thus narrowing down the classes of
individuals who may be informed.513
The 2015 FRA report emphasised that the right to access
personal data and obtain rectification or erasure of
such data belongs to the essence of the right to data
protection, and recalled the principle of judicial review
enshrined in Article 47 of the Charter.514 The ECtHR
considers the issue of notification to be inextricably
linked to the effectiveness of remedies before the court,
as long as it no longer jeopardises the purpose of the
surveillance. While the court again emphasises the
crucial importance of both the notification obligation
and the right to access principles, it does note that the
effectiveness of remedies may be guaranteed by the
existence of one or the other right. This specification
seems to take into account the difficulties inherent in
the practical implementation of these rights – especially
the obligation to notify.
ECtHR case law: notification and access to information in cases of surveillance
Notification
“It may not be feasible in practice to require subsequent notification in all cases. The activity or danger against which
a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of
those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the
long-term purpose that originally prompted the surveillance. Furthermore, such notification might serve to reveal the
working methods and fields of operation of the intelligence services and even possibly to identify their agents. Therefore, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance
has ceased cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society”,
as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance
measure, information should, however, be provided to the persons concerned.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, paras. 287
Access to information
“It is worth noting in this connection that in order to be entitled to lodge such a request the person must be in possession of the facts of the operational-search measures to which he or she was subjected. It follows that the access to
information is conditional on the person’s ability to prove that his or her communications were intercepted. Furthermore, the interception subject is not entitled to obtain access to documents relating to interception of his or her communications; he or she is at best entitled to receive “information” about the collected data. Such information is provided
only in very limited circumstances, namely if the person’s guilt has not been proved in accordance with the procedure
prescribed by law, that is, he or she has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing. It is also significant
that only information that does not contain State secrets may be disclosed to the interception subject and that under
Russian law information about the facilities used in operational-search activities, the methods employed, the officials
involved and the data collected constitutes a State secret (see paragraph 52 above). In view of the above features of
Russian law, the possibility to obtain information about interceptions appears to be ineffective.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, para. 289
Minimum requirement for remedies’ effectiveness
“The Court concludes from the above that the remedies referred to by the Government are available only to persons
who are in possession of information about the interception of their communications. Their effectiveness is therefore
undermined by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility to request and obtain information about interceptions from the authorities. Accordingly, the Court finds that Russian
law does not provide for an effective judicial remedy against secret surveillance measures in cases where no criminal
proceedings were brought against the interception subject.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5 December 2015, para. 298
513 United Kingdom, Investigatory Powers Act (2016), s. 231.
Not yet in force and will be brought into force in due course
by means of regulations made by the Secretary of State
(See United Kingdom, Investigatory Powers Act 2016,
Explanatory Note).
514 FRA (2015a), p. 61.
125