6. File or data gathering by security services or other organs of the State

late Article 8 because of its contribution to a debate of general interest (Fürst-Pfeifer v. Austria, § 45). 208. The Court has found that the collection and storage of a person’s health-related data for a very long period, together with the disclosure and use of such data for purposes unrelated to the original reasons for their collection, constituted a disproportionate interference with the right to respect for private life (Surikov v. Ukraine, §§ 70 and 89, concerning the disclosure to an employer of the medical grounds for an employee’s dispensation from military service). 209. The disclosure – without a patient’s consent – of medical records, including information relating to an abortion, by a clinic to the Social Insurance Office, and therefore to a wider circle of public servants, constituted an interference with the patient’s right to respect for private life (M.S. v. Sweden, § 35). A criminal court’s dismissal of a defendant’s application to hear evidence which contained senstitive medical information in camera was also found to have breached Article 8 as the court had not carried out any individualised assessment of proportionalty (Frâncu v. Romania, §§ 6375). The disclosure of medical data by medical institutions to journalists and to a prosecutor’s office, and the collection of a patient’s medical data by an institution responsible for monitoring the quality of medical care were also held to have constituted an interference with the right to respect for private life (Mockutė v. Lithuania, § 95). In this case there had also been an interference with Article 8 concerning the information disclosed to the applicant’s mother, given the tense relations between the latter and her daughter (§ 100). 210. The right to effective access to information concerning health and reproductive rights falls within the scope of private and family life within the meaning of Article 8 (K.H. and Others v. Slovakia, § 44). There may be positive obligations inherent in effective respect for private or family life which require the State to provide essential information about risks to one’s health in a timely manner (Guerra and Others v. Italy, §§ 58 and 60). In particular, where a State engages in hazardous activities, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information (McGinley and Egan v. the United Kingdom, §§ 97 and 101; Roche v. the United Kingdom [GC], § 167, for instance to assess any risk to which a person may be exposed).

6. File or data gathering by security services or other organs of the State35

211. This chapter should be read in conjunction with the one on Special secret surveillance of citizens/organisations, referring notably to the principles set out in the cases of Centrum för rättvisa v. Sweden [GC] and Big Brother Watch and Others v. the United Kingdom [GC]. The Court has held that where a State institutes secret surveillance, the existence of which remains unknown to the persons being controlled with the effect that the surveillance remains unchallengeable, individuals could be deprived of their Article 8 rights without being aware and without being able to obtain a remedy either at the national level or before the Convention institutions (Klass and Others v. Germany, § 36). This is especially so in a climate where technological developments have advanced the means of espionage and surveillance, and where the State may have legitimate interests in preventing disorder, crime, or terrorism36 (ibid., § 48). An applicant can claim to be the victim of a

35 See also Surveillance of telecommunications in a criminal context and Special secret surveillance of citizens/organisations, and the Guide on Data protection. 36 See the Guide on Terrorism.

violation occasioned by the mere existence of secret surveillance measures or of legislation permitting such measures, if certain conditions are satisfied (Roman Zakharov v. Russia [GC], §§ 171-172). In that case, the Court found the Kennedy approach was best tailored to the need to ensure that the secrecy of surveillance measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court (Kennedy v. the United Kingdom, § 124). 212. The mere existence of legislation which allows a system for the secret monitoring of communications entails a threat of surveillance for all those to whom the legislation may be applied (Weber and Saravia v. Germany (dec.), § 78). While domestic legislatures and national authorities enjoy a certain margin of appreciation in which to assess what system of surveillance is required, the Contracting States do not enjoy unlimited discretion to subject persons within their jurisdiction to secret surveillance (Zoltán Varga v. Slovakia*, 2021, § 151). The Court has affirmed that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate; rather, whatever system of surveillance is adopted, there must be adequate and effective guarantees against abuse (Weber and Saravia v. Germany (dec.), § 106). Powers of secret surveillance of citizens are tolerable only in so far as strictly necessary for safeguarding the democratic institutions (Klass and Others v. Germany, § 42; Szabó and Vissy v Hungary, §§ 72-73). Such interference must be supported by relevant and sufficient reasons and must be proportionate to the legitimate aim or aims pursued (Segerstedt-Wiberg and Others v. Sweden, § 88). 213. The Court found the recording of a conversation by a remote radio-transmitting device during a police covert operation without procedural safeguards to be a violation (Bykov v. Russia [GC], §§ 81 and 83; Oleynik v. Russia, §§ 75-79). Similarly, the systematic collection and storing of data by security services on particular individuals constituted an interference with these persons’ private lives, even if such data were collected in a public place (Peck v. the United Kingdom, § 59; P.G. and J.H. v. the United Kingdom, §§ 57-59) or concerned exclusively the person’s professional or public activities (Amann v. Switzerland [GC], §§ 65-67; Rotaru v. Romania [GC], §§ 43-44). Collection, through a GPS device attached to a person’s car, and storage of data concerning that person’s whereabouts and movements in the public sphere was also found to constitute an interference with private life (Uzun v. Germany, §§ 51-53). Where domestic law does not indicate with sufficient clarity the scope and manner of exercise of the discretion conferred on the domestic authorities to collect and store in a surveillance database information on persons’ private lives – in particular, where it does not set out in a form accessible to the public any indication of the minimum safeguards against abuse – this amounts to an interference with private life as protected by Article 8 § 1 of the Convention (Shimovolos v. Russia, § 66, where the applicant’s name was registered in the Surveillance Database which collected information about his movements, by train or air, within Russia). Domestic legislation should provide sufficiently precise, effective and comprehensive safeguards on the ordering, execution and potential redressing of surveillance measures (Szabó and Vissy v Hungary). According to that case, the need for the interference to be “necessary in a democratic society” had to be interpreted as requiring that any measures taken should be strictly necessary both, as a general consideration, to safeguard democratic institutions and, as a particular consideration, to obtain essential intelligence in an individual operation. Any measure of secret surveillance which did not fulfil the strict necessity criterion would be prone to abuse by the authorities (§§ 72-73). 214. In Zoltán Varga v. Slovakia*, 2021, (§ 162) the Court examined the implementation of secret surveillance measures by the national intelligence service. It noted the lack of clarity of the applicable jurisdictional rules, the lack of procedures for the implementation of the existing rules and flaws in their application, with the result that when implementing those measures the intelligence service had practically enjoyed a discretion amounting to unfettered power, not being accompanied by a measure of protection against arbitrary interference as required by the rule of law. Thus, those measures were not “in accordance with the law” for the purposes of Article 8 § 2 of the Convention.