Case Summary and Outcome

The European Court of Human Rights in a majority decision June 29, 2006, ruled the applicants’ claim inadmissible because their Convention rights under Articles 8 and 10 did not outweigh the purpose of the Fight against Crime Act which included sufficient safeguards to protect individuals. The applicants complained that the Act enabled numerous telecommunications to be monitored, in the absence of any sufficient legal basis or evidence. They further argued that monitoring was done with the aid of catchwords which remained secret and that strategic monitoring could then be used in respect of individuals, preventing the press from carrying out effective investigations into sensitive areas covered by the Act. The Court reasoned that the interference with the applicants’ rights was ‘necessary in a democratic society’ to achieve the respondent State’s aim because the strategic monitoring provided considerable safeguards against abuse; the transmission and use of personal data laid down strict conditions which limited the use of the information obtained to what was necessary; destruction of personal data established safeguards against abuse; and monitored persons were notified as soon as possible of the restriction on the secrecy of their telecommunications.

Facts

Ms. Gabriele Weber, a German national living in Montevideo, Uruguay, is a freelance journalist, investigating matters that are subject to surveillance of the Federal Intelligence Service (armaments, drug trafficking, etc.) and the first applicant. For her job, she regularly travels throughout Europe to interview people.

The second applicant is Mr. Cesar Richard Saravia, a Uruguayan national, also living in Montevideo. He was working as an employee of Montevideo City Council. He took phone messages for Ms. Weber when she was on assignments, which he then sent to her wherever she was.

On November 19, 1995, the applicants filed a constitutional complaint with the Bundesverfassungsgericht (Federal Constitutional Court), alleging that certain provisions of the Fight against Crime Act amending the Eavesdropping Act, or G 10 Act, infringed their fundamental rights. In particular, they alleged a violation of the right to secrecy of telecommunications under Art. 10 Grundgesetz (GG, Basic Law), the right to self-determination in the sphere of information under Art. 2.1 and 1.1 GG and the right to freedom of press under Art 5.1 GG. The Court delivered a judgement on November 14, 1999, finding that the second applicant’s complaint was inadmissible, because he could not substantiate that his rights were likely to be infringed by measures taken on the basis of the amended G 10 Act. The first applicant’s complaint was partly allowed, and the Court ruled that certain provisions of the Fight against Crime Act were incompatible with certain principles of the Grundgesetz. As a result, the Court set a deadline of June 30, 2001 for the legislature to bring those provisions in line with the Grundgesetz.

The applicants then filed a complaint at the European Court of Human Rights, claiming that certain provisions of the Fight against Crime Act violated their private life and correspondence under Art. 8 of the European Convention on Human Rights. In particular, they complained about the process of strategic monitoring as set out in section 3(1); the transmission of personal data and its use (section 3(3) and (5)); the destruction of personal data under section 3(6) and (7); and the refusal to give notice of restrictions on the secrecy of telecommunications (section 3(8)). The first applicant also claimed a violation of the right to freedom of press under Art. 10 of the Convention.

Decision Overview

The Court delivered a majority decision, finding that the application was inadmissible.

With regard to the applicants’ claim under Art. 8 of the Convention, the Court had to evaluate whether there was an interference with the secrecy of telecommunications. It said that even though telephone conversations are protected under Art. 8 and the applicants were members of a group of persons likely to be affected, they failed to demonstrate that the measures had actually been applied to them. However, as the Court found in earlier, comparable cases, the mere existence of legislation which allows secret monitoring of communication entails a threat of surveillance in itself for anyone  to whom the legislation may be applied. Therefore, it concerns the freedom of communication between users and poses an interference with the exercise of the applicants’ Art. 8 rights regardless of the fact whether any measures had actually been taken against them. Moreover, the Court found that the transmission of data to authorities and their use demonstrates another, separate interference with the applicants’ rights under Art. 8.

In a second step, the Court had to evaluate whether the interference was justified under Art. 8(2). Firstly, any interference must be ‘in accordance with the law’. The Court found that the interference was based on provisions of the amended G 10 Act which, together with the Federal Constitutional Court’s interpretation, provide a sufficient legal basis for the measure, also satisfying the Court’s minimum standards to avoid the abuse of power in cases of secret surveillance. Therefore, the measures were ‘in accordance with the law’.

Secondly, the interference must have a legitimate aim which the Court said was met by virtue of the listed purposes in section 3(1), second sentence, points 1-6, which included national security, the illegal importation of drugs in substantial quantities and the laundering and counterfeiting of money.

Lastly, the Court had to evaluate whether the interference was ‘necessary in a democratic society’ in order to achieve these aims, balancing the respondent State’s interest in protecting its national security against the seriousness of the interference of the applicants’ rights. In this regard the Court has consistently given national authorities a wide margin of appreciation in adopting measures to achieve the legitimate aim of protecting their national security. It found that the interference here was ‘necessary in a democratic society’ to achieve the respondent State’s aim for the following reasons: strategic monitoring under section 3(1) provided considerable safeguards against abuse, the transmission and use of personal data under section 3(3) laid down strict conditions and were therefore appropriate for the purpose of limiting the use of the information obtained to what was necessary to serve the purpose of strategic monitoring , destruction of personal data under section 3(6) and (7) established safeguards against abuse of the State’s powers of surveillance and the failure to give notice of restrictions on the secrecy of telecommunications under section 3(8) ensured that monitored persons were notified as soon as this was possible without jeopardizing the purpose of the restriction. Consequently, the Court dismissed the applicants’ complaints under Art. 8.

The Court then turned to the first applicant’s claim under Art. 10. Relying on its reasoning under the Art. 8 claim, it found firstly that there was an interference and that the interference pursued a legitimate aim. Evaluating whether the interference was ‘necessary in a democratic society’, the Court stressed the importance of the protection of journalistic sources for the freedom of press, which required an overriding public interest if an interference was to be justified. The Court again referred to its findings under Art. 8 and concluded that the first applicant’s complaint with regard to Art. 10 must also be dismissed.

In conclusion, the Court found the application inadmissible.