E. Surveillance of telecommunications in a criminal context

advance of the possibility that the employer might monitor correspondence and other communications, and of the implementation of such measures; (ii) the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy (traffic and content); (iii) whether the employer has provided legitimate reasons to justify monitoring the communications and accessing their actual content; (iv) whether there is a possibility of establishing a monitoring system based on less intrusive methods and measures; (v) the seriousness of the consequences of the monitoring for the employee subjected to it as well as the use made of the results of monitoring; and (vi) whether the employee has been provided with adequate safeguards including, in particular, prior notification of the possibility of accessing the content of communications. Lastly, an employee whose communications have been monitored should have access to a "remedy before a judicial body with jurisdiction to determine, at least in substance, how the criteria outlined above were observed and whether the impugned measures were lawful" (Bărbulescu v. Romania [GC], §§ 121-122). 606. The case-law also covers the monitoring of correspondence in the context of a commercial bankruptcy (Foxley v. the United Kingdom, §§ 30 and 43). In Luordo v. Italy the Court found a violation of Article 8 on account of the repercussions of excessively lengthy bankruptcy proceedings on the bankrupt’s right to respect for his correspondence (§ 78). However, the introduction of a system for monitoring the bankrupt’s correspondence is not in itself open to criticism (see also Narinen v. Finland). 607. The question of companies’ correspondence is closely linked to that of searches of their premises (reference is accordingly made to the chapter on Commercial premises). For example, in Bernh Larsen Holding AS and Others v. Norway the Court found no violation on account of a decision ordering a company to hand over a copy of all data on the computer server it used jointly with other companies. Although the applicable law did not require prior judicial authorisation, the Court took into account the existence of effective and adequate safeguards against abuse, the interests of the companies and their employees and the public interest in effective tax inspections (§§ 172-175). However, the Court found a violation in the case of DELTA PEKÁRNY a.s. v. the Czech Republic, concerning an inspection of business premises with a view to finding circumstantial and material evidence of an unlawful pricing agreement in breach of competition rules. The Court referred to the lack of prior judicial authorisation, the lack of ex post facto review of the necessity of the measure, and the lack of rules governing the possibility of destroying the data obtained (§§ 92-93).

E. Surveillance of telecommunications in a criminal context75

608. The abovementioned requirements of Article 8 § 2 must of course be satisfied in this context (Kruslin v. France, § 26; Huvig v. France, § 25). In particular, such surveillance must serve to uncover the truth. Since it represents a serious interference with the right to respect for correspondence, it must be based on a “law” that is particularly precise (Huvig v. France, § 32) and must form part of a legislative framework affording sufficient legal certainty (ibid.). The rules must be clear and detailed (the technology available for use is continually becoming more sophisticated), as well as being both accessible and foreseeable, so that anyone can foresee the consequences for themselves (Valenzuela Contreras v. Spain, §§ 59 and 61). This requirement of sufficiently clear rules concerns both the circumstances in which and the conditions on which the surveillance is authorised and carried out. Since the implementation of measures of secret surveillance of communications is not

75 See also File or data gathering by security services or other organs of the State, and the Guide on Data protection.

open to scrutiny by the individuals concerned or the public at large, the “law” would run counter to the rule of law if there were no limits to the legal discretion granted to the executive, or to a judge (Karabeyoğlu v. Turkey, §§ 67-69 and §§ 86-88, with further references therein). Consequently, the law must indicate the scope of any such discretion and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (Roman Zakharov v. Russia [GC], §§ 229-230). If there is any risk of arbitrariness in its implementation, the law will not be compatible with the lawfulness requirement (Bykov v. Russia [GC], §§ 78-79). In such a sensitive area as recourse to secret surveillance, the competent authority must state the compelling reasons justifying such an intrusive measure, while complying with the applicable legal instruments (Dragojević v. Croatia, §§ 94-98; see also Liblik and others v. Estonia, §§ 132-143, as to the duly reasoning of authorisations of secret surveillance). In addition, the interception of telephone conversations is not to be based on an overly broad and imprecise decision, for instance, merely authorising secret surveillance of a stabbing victim and his “contacts” (Azer Ahmadov v. Azerbaijan, §§ 66, §§ 7172). 609. In this connection, the Court has emphasised the need for safeguards (for a summary, see Big Brother Watch and Others v. the United Kingdom [GC] §§ 335). The Court must be satisfied that there exist guarantees against abuse which are adequate and effective (Karabeyoğlu v. Turkey, §§ 101-103, § 106). This assessment depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to permit, carry out and supervise them, and the kind of remedy provided by the national law (Roman Zakharov v. Russia [GC], § 232; Falzarano v. Italy (dec.), §§ 27-29)). Review and supervision of secret surveillance measures may come into play at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual’s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his or her own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding his or her rights (Roman Zakharov v. Russia [GC], § 233). This is particularly significant in deciding whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, since the Court has held that powers to instruct secret surveillance of citizens are only tolerated under Article 8 to the extent that they are strictly necessary for safeguarding democratic institutions. In assessing the existence and extent of such necessity, the Contracting States enjoy a certain margin of appreciation. However, this margin is subject to European supervision embracing both the legislation and the decisions applying it (Roman Zakharov v. Russia [GC], § 232). 610. The phone-tapping operations can only be ordered on the basis of suspicions that can be regarded as objectively reasonable (Karabeyoğlu v. Turkey, § 103). The Court has also underlined the importance of an authority empowered to authorise the use of secret surveillance being capable of verifying “the existence of a reasonable suspicion against the person concerned, in particular, whether there are factual indications for suspecting that person of planning, committing or having committed criminal acts or other acts that may give rise to secret surveillance measures” and “whether the requested interception meets the requirement of ‘necessity in a democratic society’ ... for example, whether it is possible to achieve the aims by less restrictive means” (Roman Zakharov v. Russia [GC], § 260; Dragojević v. Croatia, § 94). Such verification, together with the requirement to set out the relevant reasons in the decisions by which secret surveillance is authorised, constitute an important guarantee, ensuring that the measures are not ordered haphazardly, irregularly or without due and proper consideration. 611. The Court has found a violation of the right to respect for correspondence in the following cases, for example: Kruslin v. France, § 36; Huvig v. France, § 35; Malone v. the United Kingdom, § 79; Valenzuela Contreras v. Spain, §§ 60-61; Prado Bugallo v. Spain, § 30; Matheron v. France, § 43;

Dragojević v. Croatia, § 101; Šantare and Labazņikovs v. Latvia, § 62; Liblik and others v. Estonia, §§ 140-142 concerning the retrospective justification of orders authorising secret surveillance during criminal proceedings. As for a non-violation, see, for instance, Karabeyoğlu v. Turkey, §§ 104-110. 612. A person who has been subjected to telephone tapping must have access to “effective scrutiny” to be able to challenge the measures in question (Marchiani v. France (dec.)). To deny a person the standing to complain of the interception of his or her telephone conversations, on the ground that it was a third party’s line that had been tapped, infringes the Convention (Lambert v. France, §§ 38-41; compare Bosak and Others v. Croatia, §§ 63 and 65). 613. The Court has held that the lawful steps taken by the police to obtain the numbers dialled from a telephone in a flat were necessary in the context of an investigation into a suspected criminal offence (P.G. and J.H. v. the United Kingdom, §§ 42-51). It reached a similar conclusion where telephone tapping constituted one of the main investigative measures for establishing the involvement of individuals in a largescale drugtrafficking operation, and where the measure had been subjected to “effective scrutiny” (Coban v. Spain (dec.)). 614. In general, the Court acknowledges the role of telephone tapping in a criminal context where it is in accordance with the law and necessary in a democratic society for, inter alia, public safety or the prevention of disorder or crime. Such measures assist the police and the courts in their task of preventing and punishing criminal offences. However, the State must organise their practical implementation in such a way as to prevent any abuse or arbitrariness (Dumitru Popescu v. Romania (no. 2)). 615. In the context of a criminal case, telephone tapping operations that were ordered by a judge, carried out under the latter’s supervision, accompanied by adequate and sufficient safeguards against abuse and subject to subsequent review by a court have been deemed proportionate to the legitimate aim pursued (Aalmoes and Others v. the Netherlands (dec.); Coban v. Spain (dec.)). The Court also found that there had been no violation of Article 8 where there was no indication that the interpretation and application of the legal provisions relied on by the domestic authorities had been so arbitrary or manifestly unreasonable as to render the telephone tapping operations unlawful (İrfan Güzel v. Turkey, § 88). 616. Furthermore, the State must ensure effective protection of the data thus obtained and of the right of persons whose purely private conversations have been intercepted by the law-enforcement authorities (Craxi v. Italy (no. 2), §§ 75 and 83, violation; compare Man and Others v. Romania (dec.), §§ 104-111). In Drakšas v. Lithuania the Court found a violation on account of leaks to the media and the broadcasting of a private conversation recorded, with the authorities’ approval, on a telephone line belonging to a politician who was under investigation by the prosecuting authorities (§ 60). However, the lawful publication, in the context of constitutional proceedings, of recordings of conversations that were not private but professional and political was not found to have breached Article 8 (ibid., § 61).