Introduction

The right to privacy is intrinsic to a person and this right has been widely recognized by the different countries as a fundamental right of citizens such as India recognize right to privacy as fundamental right under Article 21 of the Indian Constitution. Though right to privacy has been recognized, but there are limitations to it which must be justified. The limitations are also essential for the protection of security of nation such as government surveillance programs which involves gathering of personal information for the purpose of prevention of crimes. Surveillance programs works as a restriction on the right to privacy which are reasonable and justified. There have been various instances where the citizens complain about their national surveillance program on the ground that it is violative of right to privacy and not reasonable restriction.

For that purpose, there are national as well as International instruments provide remedy in case of violation of right to privacy. In the same direction, Article 8 of the European Convention on Human Right which guarantees the right to respect for private life and correspondence holds important position in the protection of right to privacy against unreasonable surveillance activities of government. This convention provides remedy to the aggrieved by allowing even the individual to file complaint before it. The said convention has influence on domestic laws with respect to protection of right to privacy of the Individuals. The present case is one where the European Court of Human Rights has issued direction to the nations for the protection of right to privacy of person against the unreasonable surveillance activities. This case highlighted the role of European Court of Human Rights in the protection of human rights so mentioned under the European convention.[i]

Background

The European Court of Human Rights is an international court which has been established by the European Convention on Human Rights. It has jurisdiction related to human rights matters over all the contracting states. The court deals with numerous cases regarding the violation of privacy by various surveillance programs. The court directed its contracting states as to protection of human rights against the unreasonable surveillance which can be individual and mass as well. In Kennedy v. The United Kingdom, [ii]TheEuropean Court of Human Rights observed the telephone, email communications even in business dealings are protected under Article 8. That was the welcome step of protecting the Right to Privacy in the Digital Age. Therefore, it can be stated that the European Court of Human Rights plays important role in providing effective remedies to aggrieved person but emphasized on first exhausting the domestic remedy.[iii]

Facts

The applicant in this case is the editor-in-chief of a publishing company and a magazine. He is Russian national who is also the chairperson of the Glasnost Defence Foundation, an NGO monitoring the state of media freedom in Russia. The main issue arises regarding the Operational Search Activities Act, 1995 (‘OSAA’) and the Code of Criminal Procedure, which govern the interception of communications in Russia. Section 8(2) of the OSAA states about the operational search measures which also include telegraphic communications, with prior judicial authorization within forty-eight hours. However, the requirement of prior judicial authorization can be waived of in urgent cases such as threat to national, military, economic or ecological security. It has been observed that law-enforcement authorities have the technical ability to directly intercept all communications. The other aspect is that the Russian law does not allow that a person whose communications are intercepted must be notified. In pursuant to that Order no. 70 of the Ministry of Communications was passed which permitted the Federal Security Service to intercept all telephone communications without prior judicial authorization and that order was not published.

The applicant challenged the action of three mobile network operators regarding their interference with his right to privacy of his telephone communication. He also challenged the order 70 which was not even duly published. The court dismissed the claim by holding that applicant had failed to prove that the said mobile operators had transmitted any protected information to unauthorised persons. Then, The St Petersburg City Court also upheld the judgment of a District Court on an appeal preferred by the applicant. 

In 2006, Applicant lodged a complaint with the European Court of Human Rights under Article 34 of the convention which allows even the individual to file complaint on the ground of violation of Article 8 by the Russia’s national law permitted the security services to intercept, through technical means, any person’s communications without obtaining prior judicial authorization. Further, He added that he had no effective legal remedy at national level to challenge that legislation.[iv]

Issues

1. Whether there is a Violation of Article 8 of The Convention.
2. Whether the Interference with the right to privacy by means of surveillance measures was justified.
3. Whether there is a Violation of Article 13 of The Convention.

Relevant Legal Provisions

Article 23 of the Constitution of Russia

It guarantees everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation. Further, it also protects the right to privacy of correspondence, of telephone conversations, postal, telegraph and other messages. The only court by the order can restrict means of telephone equipment, including non-content-based data, such as information about the incoming and outgoing connections of a specified subscriber. The monitoring of such data was also subject to prior judicial authorisation.

Article 137 of the Criminal Code of Russia

Article 137 of the Criminal Code deals with the Invasion of Personal Privacy. It punishes the collection or dissemination of information illegally regarding the private life of a person without his consent, or the circulation of this information in a public through mass media or other modes.

Article 138 of the Criminal Code

It deals with the Violation of the Secrecy of Correspondence, Telephone Conversations, Postal, Telegraphic and Other Messages. If any person or even the officials using his position interferes with the secrecy of correspondence, telephone conversations, or postal, telegraphic, or other messages of individuals, shall be punished with a fine.

The Operational Search Activities Act (OSAA ) of 12 August 1995

It governs the interception of postal, telegraphic, telephone and other forms of communication and the collection of data from technical channels of communication. Interception may be carried out by Federal Security Service (FSB) and the agencies of the Ministry of the Interior by using equipment installed by communication service providers. The Constitutional Court upheld the constitutionality of certain provisions of the OSAA by observing that the person whose communications had been intercepted was entitled to lodge a supervisory review complaint against the judicial decision authorising the interception.

Landmark Decisions

Bykov v. Russia [v]

In this case, it was observed that Russian law did not clearly specify the categories of persons who might be subjected to interception measures. In particular, surveillance measures were not limited to persons suspected or accused of criminal offences. Any person who had information about a criminal offence could have his or her telephone tapped. Furthermore, interception was not limited to serious and especially serious offences. Russian law allowed interception measures in connection with offences of medium severity, such as, for example, pick pocketing.

Klass and Others v. Germany[vi]

In the present case, the legislation of Germany was in issue which allowed a system of secret surveillance under which the mail, post and telecommunications of all persons in the Federal Republic of Germany are monitored, without their knowledge. Thus, that legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. The Court applied the existence test by holding that held that every individual might claim to be the victim of a violation of convention occasioned by the mere existence of secret measures though such measures had not been in fact applied to him. Therefore, this case enlarged the scope of victim in the case of secret surveillance measures which allows the interception of communication without the knowledge of person whose communication has been intercepted.

Kennedy v. The United Kingdom[vii]

This is the most recent case of a European court of human rights wherein the test of reasonable likelihood has been evolved in the cases of secret surveillance measures. Reasonable likelihood refers to the context that there must be a probability that the alleged surveillance measures had collected and retained information concerning his or her private life and thereby violated the right to privacy. Therefore, The Kennedy approach allows the Court to adopt the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into consideration the legal systems as well as the remedies available under the domestic law. 

Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria[viii]

In this case, the court observed that the absence of a requirement to notify the subject of interception at any point under domestic law is incompatible with the Convention and therefore such surveillance practice is deemed to be arbitrary. Therefore, the court emphasised on the need for effective and practical national safeguard against the improper use of special means of surveillance to protect the rights of its citizens.

Judgment

The Grand Chamber of the European Court unanimously delivered a landmark judgment wherein it was observed that –

Article 8 of The Convention has been violated

It has been alleged by the applicant in the present case that the system of interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 of the Convention. The court analyzed in depth the Article 8 which explicitly provides for the right to respect for his private and family life, his home and his correspondence. However, clause 2 of the said Article protects the justified action in accordance with law for national security of the nation.

In that direction, the court reiterated that it has been established that the mobile telephone communications are within the notion of ‘private life’ and correspondence within article 8. Further the court relied on the following factors to adjudge the violation of Article 8

• The scope of the legislation which permits the secret surveillance and whether the applicant can possibly be affected by it;
• The availability of remedies at the national level.

By taking into account both the factors; the court observed that the said legislation of Russia provided the wide and direct access to police by technical means of all mobile phone communications. Further, it is pertinent to note that there is insufficient clarity regarding the circumstances in which public authorities are empowered to resort to secret surveillance which might affect person who is not involved in criminal matter or other offence. The legislation allows the automatic storage of clearly irrelevant data which clearly demonstrate the violation of Article 8.

Interference with Article 8 using surveillance measures is not justified.

Article 8(2) clearly stipulates that the interference with the right to privacy under Article 8(2) can be justified if it is in accordance with law, it is necessary in democratic country 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.

In the present scenario, the interference was according to the Russian law. There are other factors which must be determined such as whether the said legislation met the quality requirements to get the protection of clause 2 of Article 8. The court observed that there is inadequate judicial supervision with respect to surveillance matters which itself opens the scope of Arbitrariness. Further, it has been noted that this legislation does not have provision that surveillance measures are to be ordered only in case of “necessary in democratic country”. Therefore, the interference by the Russian law with the Article 8 is not justified under Article 8(2).

Article 13 of The Convention has been violated

Article 13 of the convention deals with the Right to an effective remedy which stipulates if the rights and freedoms of a person which are so protected under this Convention, are violated then the person shall have an effective remedy before a national authority notwithstanding with a fact that the violation has been committed by persons acting in an official capacity.

In the present case, applicant alleged that he had no effective remedy before national authority for his complaint. Therefore, the court considered this point and upheld the violation of Article 13 of the convention. Further, the court unanimously held that there is no need to examine the complaint under Article 13. [ix]

Therefore, the court by applying Article 41 of the convention held that Russia, a contracting party has violated the convention, therefore the court can afford just satisfaction to an injured party. The court awarded the sum of EUR 40,000 to the applicant for nonpecuniary damage. [x]

Concepts Highlighted

• In sum, the analysis and unanimous finding of the Grand chamber indicate that the court has enlarged the protection of right to privacy of person by even scrutinizing the surveillance measures taken by a nation for the purpose of security of Nation.
• The court emphasized on the need to comply with the requirements of proper and valid surveillance measures as it is important.
• Further, it has been noted that it is not always important that the person approaching the court must be the one whose communication has been intercepted; therefore, everyone who might be affected by such interception of communication can be victim and claim the violation of article 8 of the convention.

• It is also pertinent to note that there must be the availability of national remedies to the person aggrieved by the surveillance measures. By this decision, the European Court of Human rights recognised the importance of Right to privacy of person against unjustified surveillance measures.

References

[i] http://eulawanalysis.blogspot.com/2015/12/zakharov-v-russia-mass-surveillance-and.html.

[ii] Kennedy v. the United Kingdom, (Application no. 26839/05, [2010] ECHR 682,  Judgment on 18 May 2010).

[iii] https://www.hrlc.org.au/human-rights-case-summaries/secret-surveillance-in-russia-violates-the-right-to-privacy?rq=Kennedy%20v%20the%20United%20Kingdom%20%5B2010%5D%20ECHR%20682

[iv] https://policehumanrightsresources.org/content/uploads/2018/07/CASE-OF-ROMAN-ZAKHAROV-v.-RUSSIA.pdf?x96812

[v] App no 4378/02, IHRL 3609 (ECHR 2009), 10th March 2009

[vi] Klass v. Germany, (Application no. 5029/71, Judgment on September 6, 1978)

[vii] Kennedy v. the United Kingdom, (Application no. 26839/05, [2010] ECHR 682,  Judgment on 18 May 2010)

[viii] Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (Application no. 62540/00, Judgment on June 28, 2007)

[ix] Convention for the Protection of Human Rights and Fundamental Freedoms, https://rm.coe.int/1680063765

[x] De Hert, P. & Boehm, F., “Notification, an important safeguard against the improper use of surveillance – finally recognised in case law and EU law”, European Journal of Law and Technology, 2012, vol. 3, No. 3.