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Surveillance for a legitimate
aim: need for ‘national security’
definition(s)
Article 8 (2) of the ECHR states that all interferences with
the right to privacy should pursue a legitimate aim. It
refers in particular to “national security, public safety or
the economic wellbeing of the country”. Article 52 (1) of
the EU Charter of Fundamental Rights does not refer
to specific aims, but states that “any limitation of the
exercise of the rights and freedoms recognised by this
Charter must […] respect the essence of those rights and
freedoms […] and genuinely meet objectives of general
interest recognised by the Union or protect the rights
and freedom of others”.
Well established ECtHR case law acknowledges that
secret surveillance measures pursue the legitimate aims
mentioned in Article 8 (2) of the ECHR, in particular
‘national security’. As illustrated in Roman Zakharov
v. Russia, the legitimate aim test does not create a major
issue in the court’s case law.
ECtHR case law: a legitimate aim
“[T]he Court considers it clear that the surveillance measures permitted by Russian law pursue the legitimate aims
of the protection of national security and public safety,
the prevention of crime and the protection of the economic well-being of the country.”
ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 4 December 2015,
para. 237
Whether the measures at issue pursue a legitimate
aim is rarely questioned by the ECtHR. According to the
court, notions like national security – the protection of
which is a primary aim of intelligence services – must
therefore comply with the ‘quality of law’ requirements,
in particular foreseeability/clarity of the law.
The ECtHR has held that it is difficult to precisely define
the concept of national security. Yet, even broadly
defined, and leaving a large margin of appreciation to
Council of Europe Member States, in its case law, the
court assigns to the notion of national security various
concepts that need to have a factual basis.
It is clear from the examples listed in the box on ECtHR
case law on national security that the latter goes
beyond the protection of the territorial integrity of
a state and protection of its democratic institutions –
extending to major threats to public safety and
including cyber-attacks on critical infrastructures. In
some EU secondary legislation, ‘national security’ is
explained as state security – for instance, in Article 15(1)
ECtHR case law: national security
Throughout its jurisprudence, the ECtHR has accepted,
among others, as threats to national security:
- espionage (Roman
v. Germany)
Zakharov
v.
Russia,
Klass
- terrorism (Klass v. Germany, Weber v. Saravia)
- incitement to/approval of terrorism (Zana v. Turkey)
- subversion of parliamentary democracy (Leander
v. Sweden)
- separatist extremist organisations that threaten the
unity or security of a state by violent or undemocratic
means (United Communist Party of Turkey v. Turkey)
- inciting disaffection of military personnel (Arrowsmith
v. United Kingdom)
Source: Born H. and Leigh I. (2005), p. 30; ECtHR (2013); updated by FRA, 2017
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