Surveillance by intelligence services – Volume II: field perspectives and legal update
ECtHR case law: quality of the law
CJEU on quality of the law
“[A]ny interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one
or more of the legitimate aims to which paragraph 2 of
Article 8 refers and is necessary in a democratic society
in order to achieve any such aim […].
“[N]ational legislation must, first, lay down clear and
precise rules governing the scope and application of
[…] a data retention measure and imposing minimum
safeguards, so that the persons whose data has been
retained have sufficient guarantees of the effective protection of their personal data against the risk of misuse.
That legislation must, in particular, indicate in what circumstances and under which conditions a data retention measure may, as a preventive measure, be adopted,
thereby ensuring that such a measure is limited to what
is strictly necessary.”
The Court notes from its well established case-law that
the wording “in accordance with the law” requires the
impugned measure both to have some basis in domestic
law and to be compatible with the rule of law, which is
expressly mentioned in the Preamble to the Convention
and inherent in the object and purpose of Article 8. The
law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to
its effects […].
The Court has held on several occasions that the reference to “foreseeability” in the context of interception of
communications cannot be the same as in many other
fields. Foreseeability in the special context of secret
measures of surveillance, such as the interception of
communications, cannot mean that an individual should
be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct
accordingly. However, especially where a power vested
in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have
clear, detailed rules on interception of telephone conversations, especially as the technology available for use is
continually becoming more sophisticated. The domestic
law must be sufficiently clear to give citizens an adequate
indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures […].
Moreover, since the implementation in practice of measures of secret surveillance of communications is not open
to scrutiny by the individuals concerned or the public at
large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently,
the law must indicate the scope of any such discretion
conferred on the competent authorities and the manner
of its exercise with sufficient clarity to give the individual
adequate protection against arbitrary interference […].
In its case-law on secret measures of surveillance, the
Court has developed the following minimum safeguards
that should be set out in law in order to avoid abuses of
power: the nature of offences which may give rise to an
interception order; a definition of the categories of people
liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed
for examining, using and storing the data obtained; the
precautions to be taken when communicating the data to
other parties; and the circumstances in which recordings
may or must be erased or destroyed […].”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 4 December 2015,
paras. 227-231
38
CJEU, Joined Cases C-203/15 and C-698/15, Tele2 Sverige and Watson v. Home
Secretary, 21 December 2016, para. 109
Given the complexity of the issue, it can be difficult
for a lay person to understand surveillance legal
frameworks. In light of this reality, the ECtHR has not
excluded the possibility for a law to be considered
sufficiently clear if individuals can obtain the necessary
understanding of the law by seeking legal advice.88
FRA’s fieldwork89 in seven EU Member States confirmed
that expectations for lay persons to understand
surveillance legislation – even with legal advice – are
unrealistic. Most actors working in the field agree that
such legislation hardly meets the standards of clarity
and foreseeability. Officials interviewed also deemed
such pieces of legislation as particularly complex
compared to legislation encountered in other areas of
their professional expertise and experience.
“The law governing the intelligence services is difficult to
understand, inconsistent and has no regulatory concept.”
(Academia)
Interviewees tended to be critical of current legislation.
The views most differed by the type of institution
represented: the further removed respondents were
from the respective oversight system, the more critical
they were. In this regard, civil society organisations
(mainly represented by legal professionals or lawyers
involved in law suits), academics and practicing lawyers
were more critical than representatives of oversight
bodies or executive control.
Representatives of the aforementioned public
institutions tended to be less critical. The data collected
provide possible explanations for this perspective. First,
88 ECtHR, Kafkaris v. Cyprus [GC], No. 21906/04,
12 February 2008, para. 140 and Del Rio Prada v. Spain [GC],
No. 42750/09, 21 October 2013, para. 79.
89 Annex 1, section on ‘Social fieldwork methodology’, presents
information about the interviewees, number of interviews
during which specific thematic headlines were discussed,
quoting conventions, and other related information.