Privacy Limits
Cases
ERNHARDT
2001] UKHRR 887, [2001] 2 AC 532, [2001] Prison LR 322
LORD BINGHAM OF CORNHILL
My Lords,
1. On 31 May 1995 the Home Secretary introduced a new policy (“the policy”) governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. The policy was expressed in the Security Manual as an instruction to prison governors in these terms:
The legal background
5. Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment.
6. These propositions rest on a solid base of recent authority. In R v Board of Visitors of Hull Prison, Ex p St Germain [1979] QB 425, 455 Shaw LJ made plain that
“despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . . An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise.”
7.
Raymond v Honey [1983] 1 AC 1 arose from the action of a prison governor who blocked a prisoner’s application to a court. The House of Lords affirmed, at p 10, that
“under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication . . .”
Section 47 was held to be quite insufficient to authorise hindrance or interference with so basic a right as that of access to a court. To the extent that rules were made fettering a prisoner’s right of access to the courts and in particular his right to institute proceedings in person they were ultra vires.
8. In R v Secretary of State for the Home Department, Ex p Anderson [1984] QB 778 the prisoner’s challenge was directed to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally. Reiterating the principle that a prisoner remains invested with all civil rights which are not taken away expressly or by necessary implication, Robert Goff LJ, giving the judgment of the Queen’s Bench Divisional Court, said, at p 790:
“At the forefront of those civil rights is the right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice and assistance with regard to the initiation of civil proceedings is inseparable from the right of access to the courts themselves.”
The standing order in question was held to be ultra vires. At pp 793-794 the court observed:
“As it seems to us, a requirement that an inmate should make . . . a complaint as a prerequisite of his having access to his solicitor, however desirable it may be in the interests of good administration, goes beyond the regulation of the circumstances in which such access may take place, and does indeed constitute an impediment to his right of access to the civil court.”
9.
Campbell v United Kingdom (1992) 15 EHRR 137 concerned the compatibility with the European Convention of rule 74(4) of the Prison (Scotland) Rules 1952 (SI 1952/565)which provided that “every letter to or from a prisoner shall be read by the Governor . . . and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable.” This rule had earlier been upheld as valid by the Court of Session: Leech v Secretary of State for Scotland, 1991 SLT 910. The European Court held that the interference with the applicant’s correspondence violated article 8 of the Convention. At p 161, para 48 of its judgment, the court said:
“Admittedly, as the Government pointed out, the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters which have little or nothing to do with litigation. Nevertheless, the Court sees no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concern matters of a private and confidential character. In principle, such letters are privileged under Article 8.
This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, eg opening the letter in the presence of the prisoner. The reading of a prisoner’s mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as ‘reasonable cause’ will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused.”
10. That decision was applied in R v Secretary of State for the Home Department, Ex p Leech [1994] QB 198. This case concerned rule 33(3) of the Prison Rules 1964 (SI 1964/388), which was in terms similar, although not identical, to rule 74(4) of the Scottish Rules. The decision is important for several reasons. First, it re-stated the principles that every citizen has a right of unimpeded access to the court, that a prisoner’s unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) of the 1952 Act did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client about contemplated legal proceedings. Legal professional privilege was described as an important auxiliary principle serving to buttress the cardinal principles of unimpeded access to the court and to legal advice. Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and the court observed, at p 212, that a fundamental right such as the common law right to legal professional privilege would very rarely be held to be abolished by necessary implication. But the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule. As it was put, at p 212:
“The question is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability.”
The court concluded that there was nothing which established objectively that there was a need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3). While section 47(1) of the 1952 Act by necessary implication authorised some screening of correspondence between a prisoner and a solicitor, such intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence: since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to communicate in confidence with his solicitor the rule was drawn in terms which were needlessly wide, and so was held to be ultra vires.
11. In the light of the decisions in Campbell and Leech, a new prison rule was made, now rule 39 of the Prison Rules 1999 (SI 1999/728). It provides, so far as material:
“(1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.
“(2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with in accordance with the other provision of these Rules.
“(3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.
“(4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped.”
This rule, it is accepted, applies only to correspondence in transit from prisoner to solicitor or vice versa. The references to opening and stopping make plain that it has no application to legal correspondence or copy correspondence received or made by a prisoner and kept by him in his cell.
12. The Court of Appeal decision in Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, save on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary’s evidence showed a pressing need for a measure which restricted prisoners’ attempts to gain access to justice, and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 575:
“From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament.”
The argument
13. The ambit of the present argument is very narrow. In the face of a compelling statement by Mr Narey, the Director General of HM Prison Service, Mr Daly accepts the need for random searches of prisoners’ cells for the purpose of security, preventing crime and maintaining order and discipline. He accepts that such searches may properly be carried out in the absence of the resident prisoner. He accepts the need for prison officers to examine legal correspondence held by prisoners in their cells to make sure that it is bona fide legal correspondence and that such correspondence is not used as a convenient hiding place to secrete drugs or illicit materials of any kind, or to keep escape plans or any records of illegal activity. Thus he does not claim that privileged legal correspondence is immune from all examination. He contends only that such examination should ordinarily take place in the presence of the prisoner whose correspondence it is.
14. The Home Secretary for his part accepts that prison officers may not read a prisoner’s privileged legal correspondence during a cell search carried out in the absence of the prisoner. But he relies on the statement of Mr Narey, who regards the right to examine such correspondence as necessary and regards the absence of the prisoner during the examination as a necessary feature of the policy. Mr Narey states:
“The aim of the search procedure is to prevent the concealment of material likely to endanger prison security, or the safety of others or which would contribute to criminal activity within the prison. These searches must be carried out in the absence of the prisoner in order to discourage prisoners from using intimidatory or conditioning tactics to prevent officers carrying out a full search of possessions. By ‘conditioning tactics’ I mean action by which prisoners seek to influence the future behaviour of prison officers. For example, a prisoner might create a scene whenever a particular item was searched, intending to cause prison officers not to search it in future on the ground that searching it was more trouble than it was worth. The policy also prevents prisoners from becoming familiar with searching techniques generally and those of individual officers.”
Mr Narey goes on to state that alternative procedures have been considered within the prison service and rejected and states:
“The difficulty is that the prisoner’s presence would compromise the policy’s aims of preventing prisoners from intimidating or conditioning officers and from gaining familiarity with general and individual search techniques.”
He goes on to say:
“The respondent [Secretary of State], the Prison Service and its staff, are mindful that the distinction between the examination of legal documents to confirm that they are bona fide and do not conceal anything illicit and the reading of legal documents (which current instructions expressly preclude other than by authority of a governor acting on received intelligence), is a fine one. However, anything of an illicit nature such as records of key codes or drug dealing can with ease be disguised as brief notations on what in every other respect is a legitimate legal document. It is the considered opinion of the respondent, of the Prison Service generally, and my own view, that the unreliability of current intelligence systems in prisons makes it unavoidable that we maintain the current position in an effort to deter concealments of this nature and the resultant threat to security and good order and discipline.”
A record of illicit property found during cell searches year by year since 1993, appended to Mr Narey’s statement, shows that the number of finds per year has very greatly increased since 1995, although the number of items which could be concealed in legal correspondence is relatively very small.
15. It is necessary, first, to ask whether the policy infringes in a significant way Mr Daly’s common law right that the confidentiality of privileged legal correspondence be maintained. He submits that it does for two related reasons: first, because knowledge that such correspondence may be looked at by prison officers in the absence of the prisoner inhibits the prisoner’s willingness to communicate with his legal adviser in terms of unreserved candour; and secondly, because there must be a risk, if the prisoner is not present, that the officers will stray beyond their limited role in examining legal correspondence, particularly if, for instance, they see some name or reference familiar to them, as would be the case if the prisoner were bringing or contemplating bringing proceedings against officers in the prison. For the Home Secretary it is argued that the policy involves no infringement of a prisoner’s common law right since his privileged correspondence is not read in his absence but only examined.
16. I have no doubt that the policy infringes Mr Daly’s common law right to legal professional privilege. This was the view of two very experienced judges in R v Governor of Whitemoor Prison, Ex p Main [1999] QB 349, against which decision the present appeal is effectively brought. At p 366 Kennedy LJ said:
“In my judgment legal professional privilege does attach to correspondence with legal advisers which is stored by a prisoner in his cell, and accordingly such correspondence is to be protected from any unnecessary interference by prison staff. Even if the correspondence is only inspected to see that it is what it purports to be that is likely to impair the free flow of communication between a convicted or remand prisoner on the one hand and his legal adviser on the other, and therefore it constitutes an impairment of the privilege.”
Judge LJ was of the same opinion. At p 373, he said:
“Prisoners whose cells are searched in their absence will find it difficult to believe that their correspondence has been searched but not read. The governor’s order will sometimes be disobeyed. Accordingly I am prepared to accept the potential ‘chilling effect’ of such searches.”
In an imperfect world there will necessarily be occasions when prison officers will do more than merely examine prisoners’ legal documents, and apprehension that they may do so is bound to inhibit a prisoner’s willingness to communicate freely with his legal adviser.
17. The next question is whether there can be any ground for infringing in any way a prisoner’s right to maintain the confidentiality of his privileged legal correspondence. Plainly there can. Some examination may well be necessary to establish that privileged legal correspondence is what it appears to be and is not a hiding place for illicit materials or information prejudicial to security or good order.
18. It is then necessary to ask whether, to the extent that it infringes a prisoner’s common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime. Mr Daly’s challenge at this point is directed to the blanket nature of the policy, applicable as it is to all prisoners of whatever category in all closed prisons in England and Wales, irrespective of a prisoner’s past or present conduct and of any operational emergency or urgent intelligence. The Home Secretary’s justification rests firmly on the points already mentioned: the risk of intimidation, the risk that staff may be conditioned by prisoners to relax security and the danger of disclosing searching methods.
19. In considering these justifications, based as they are on the extensive experience of the prison service, it must be recognised that the prison population includes a core of dangerous, disruptive and manipulative prisoners, hostile to authority and ready to exploit for their own advantage any concession granted to them. Any search policy must accommodate this inescapable fact. I cannot however accept that the reasons put forward justify the policy in its present blanket form. Any prisoner who attempts to intimidate or disrupt a search of his cell, or whose past conduct shows that he is likely to do so, may properly be excluded even while his privileged correspondence is examined so as to ensure the efficacy of the search, but no justification is shown for routinely excluding all prisoners, whether intimidatory or disruptive or not, while that part of the search is conducted. Save in the extraordinary conditions prevailing at Whitemoor before September 1994, it is hard to regard the conditioning of staff as a problem which could not be met by employing dedicated search teams. It is not suggested that prison officers when examining legal correspondence employ any sophisticated technique which would be revealed to the prisoner if he were present, although he might no doubt be encouraged to secrete illicit materials among his legal papers if the examination were obviously very cursory. The policy cannot in my opinion be justified in its present blanket form. The infringement of prisoners’ rights to maintain the confidentiality of their privileged legal correspondence is greater than is shown to be necessary to serve the legitimate public objectives already identified. I accept Mr Daly’s submission on this point.
20. I am fortified in reaching this view by four considerations, all of some importance in my opinion:
(1) Following a complaint to him about the policy by a prisoner other than Mr Daly in November 1995, the Prisons Ombudsman carried out a full inquiry and reported in November 1996. In his report the Ombudsman said:
“I entirely support the main thrust of Woodcock’s recommendations regarding cell searching. It is apparent that prisoner intimidation was precluding the effective searching of prisoner accommodation in many establishments, and that this searching, which is essential for the safety and security of both staff and prisoners, is carried out far more effectively when the prisoner is absent. This procedure has also been assisted by the introduction of the volumetric control of prisoners’ in-possession property. However, the legal privilege which must protect the confidentiality of correspondence between a solicitor and his client is too important to be sacrificed for the sake of expediency; whilst it would undoubtedly be easier for staff to search a prisoner’s legal documents in his absence, this allows legal privilege to be compromised to an unacceptable degree.
“It is clear that, in complaining about the Prison Service’s cell searching policy, [the prisoner] has raised a matter which has far-reaching consequences. I believe that his complaint is a valid one and that, in searching prisoners’ legal papers in their absence, the Prison Service is compromising the legal privilege which ensures that correspondence between a solicitor and his client will remain confidential. I therefore uphold [the prisoner’s] complaint. Security Group has previously drafted a revised version of section 68.3 of the Security Manual. This revised version allows the prisoner to remain in the cell while his legal documents are being searched, after which the documents are sealed in a box or bag, thus avoiding any possible compromise of legal privilege. I consider that the Security Manual should be amended to incorporate this revised method of cell searching.”
(2) The Ombudsman’s investigations revealed that, following a complaint by a prisoner confined in HMP Full Sutton, a procedure had been developed in that prison to meet the wishes of prisoners who objected to the searching of their legal documents in their absence. The procedure was that
“if the prisoner objects to his legal documents being searched in his absence DST [dedicated search team] staff place the documents in a bag, seal the bag using a numbered reception seal and give the prisoner a copy of the seal number. The bag is left in the prisoner’s cell while the search is being carried out. When the prisoner returns, he checks the seal on the bag to ensure that it has not been tampered with and the documents are searched in his presence.”
It does not appear that this procedure gave rise to difficulty in practice.
(3) The current standing order covering cell searches in Scotland provides that
“When a cell is searched, this should be done by at least two officers, in the prisoner’s presence.”
It is pointed out that the prison population in Scotland is small compared with that of England and Wales, there are very few high risk prisoners and escape is rare. No doubt the problem of control is less acute in Scotland than in England and Wales. But the Scottish experience does suggest that a policy which generally permits a prisoner to be present during the examination of his privileged legal correspondence, unless there are, or are reasonably believed to be, good reasons for excluding him, is not unworkable in practice.
(4) While cell searches in recent years have led to the finding of very many more items of illicit property than in earlier years, only two such items have been identified as having been found among legal documents and the great majority of items found could not have been concealed in that way. It does not appear that legal files or bundles have been regarded by prisoners as a highly favoured hiding place for materials they are not permitted to hold.
21. In Ex p Main [1999] QB 349 and again in the present case, the Court of Appeal held that the policy represented the minimum intrusion into the rights of prisoners consistent with the need to maintain security, order and discipline in prisons. That is a conclusion which I respect but cannot share. In my opinion the policy provides for a degree of intrusion into the privileged legal correspondence of prisoners which is greater than is justified by the objectives the policy is intended to serve, and so violates the common law rights of prisoners. Section 47(1) of the 1952 Act does not authorise such excessive intrusion, and the Home Secretary accordingly had no power to lay down or implement the policy in its present form. I would accordingly declare paragraphs 17.69 to 17.74 of the Security Manual to be unlawful and void in so far as they provide that prisoners must always be absent when privileged legal correspondence held by them in their cells is examined by prison officers.
22. Although, in response to a request by the House during argument, counsel for Mr Daly proffered a draft rule which might be adopted to govern the searching of privileged legal correspondence, it would be inappropriate for the House to attempt to formulate or approve the terms of such a rule, which would call for careful consideration and consultation before it was finalised. It is enough to indicate that any rule should provide for a general right for prisoners to be present when privileged legal correspondence is examined, and in practice this will probably mean any legal documentation to avoid time-wasting debate about which documents are privileged and which are not. But the rule must provide for the exclusion of the prisoner while the examination takes place if there is or is reasonably believed to be good cause for excluding him to safeguard the efficacy of the search, and the rule must permit the prison authorities to respond to sudden operational emergencies or urgent intelligence.
23. I have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8.1 gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly’s exercise of his right under article 8.1 to an extent much greater than necessity requires. In this instance, therefore, the common law and the convention yield the same result. But this need not always be so. In Smith and Grady v United Kingdom (1999) 29 EHRR 493, the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the convention because the threshold of review had been set too high. Now, following the incorporation of the convention by the Human Rights Act 1998 and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a convention right has been breached (conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the Act, grant an effective remedy. On this aspect of the case, I agree with and adopt the observations of my noble and learned friend Lord Steyn which I have had the opportunity of reading in draft.
LORD STEYN
My Lords,
24. I am in complete agreement with the reasons given by Lord Bingham of Cornhill in his speech. For the reasons he gives I would also allow the appeal. Except on one narrow but important point I have nothing to add.
25. There was written and oral argument on the question whether certain observations of Lord Phillips of Worth Matravers MR in R (Mahmood) v Secretary of State for the Home Department[2001] 1 WLR 840 were correct. The context was an immigration case involving a decision of the Secretary of State made before the Human Rights Act 1998 came into effect. The Master of the Rolls nevertheless approached the case as if the Act had been in force when the Secretary of State reached his decision. He explained the new approach to be adopted. The Master of the Rolls concluded, at p 857, para 40:
“When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the court must take into account the European jurisprudence in accordance with section 2 of the 1998 Act.”
These observations have been followed by the Court of Appeal in R v Secretary of State for the Home Department, Ex p Isiko (unreported), 20 December 2000 and by Thomas J in R vSecretary of State for the Home Department, Ex p Samaroo (unreported), 20 December 2000.
26. The explanation of the Master of the Rolls in the first sentence of the cited passage requires clarification. It is couched in language reminiscent of the traditional Wednesbury ground of review (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), and in particular the adaptation of that test in terms of heightened scrutiny in cases involving fundamental rights as formulated in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554E-G per Sir Thomas Bingham MR. There is a material difference between the Wednesbury and Smith grounds of review and the approach of proportionality applicable in respect of review where convention rights are at stake.
27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p 80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see Professor Jeffrey Jowell QC, “Beyond the Rule of Law: Towards Constitutional Judicial Review” [2000] PL 671; Craig, Administrative Law, 4th ed (1999), 561-563; Professor David Feldman, “Proportionality and the Human Rights Act 1998”, essay in The Principle of Proportionality in the Laws of Europe (1999), pp 117, 127 et seq. The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom (1999) 29 EHRR 493. The court concluded, at p 543, para 138:
“the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court’s analysis of complaints under article 8 of the Convention.”
In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.
28. The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell [2000] PL 671, 681 has pointed out the respective roles of judges and administrators are fundamentally distinct and will remain so. To this extent the general tenor of the observations in Mahmood [2001] 1 WLR 840 are correct. And Laws LJ rightly emphasised in Mahmood, at p 847, para 18, “that the intensity of review in a public law case will depend on the subject matter in hand”. That is so even in cases involving Convention rights. In law context is everything.
LORD COOKE OF THORNDON
My Lords,
29. Having had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn, I am in full agreement with them. I add some brief observations on two matters, less to supplement what they have said than to underline its importance.
30. First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
31. To essay any list of these fundamental, perhaps ultimately universal, rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The point that I am emphasising is that the common law goes so deep.
32. The other matter concerns degrees of judicial review. Lord Steyn illuminates the distinctions between “traditional” (that is to say in terms of English case law, Wednesbury) standards of judicial review and higher standards under the European Convention or the common law of human rights. As he indicates, often the results are the same. But the view that the standards are substantially the same appears to have received its quietus in Smith and Grady v United Kingdom (1999) 29 EHRR 493 and Lustig-Prean and Beckett v United Kingdom (1999) 29 EHRR 548. And I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 was an unfortunately retrogressive decision in English administrative law, insofar as it suggested that there are degrees of unreasonableness and that only a very extreme degree can bring an administrative decision within the legitimate scope of judicial invalidation. The depth of judicial review and the deference due to administrative discretion vary with the subject matter. It may well be, however, that the law can never be satisfied in any administrative field merely by a finding that the decision under review is not capricious or absurd.
33. I, too, would therefore allow the present appeal.
LORD HUTTON
My Lords,
34. I have had the advantage of reading in draft the speeches of my noble and learned friends, Lord Bingham of Cornhill and Lord Steyn. I am in full agreement with the speech of Lord Bingham of Cornhill and for the reasons which he gives I would also allow this appeal.
35. I am also in agreement with the general observations made by Lord Steyn on R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840.
LORD SCOTT OF FOSCOTE
My Lords,
36. I have had the advantage of reading in draft the opinion prepared by my noble and learned friend, Lord Bingham of Cornhill. I am in complete agreement with the reasons he has given for allowing the appeal.
37. I am also in agreement with the remarks made by my noble and learned friend, Lord Steyn about R (Mahmood) v Secretary of State for the Home Department [2001] 1 WLR 840. I, too, would allow the appeal
Amwell View School v Dogherty
[2006] UKEAT 0243_06_1509 [2007] IRLR 198, [2006] UKEAT 0243_06_1509
SUMMARY
Admissibility of evidence. On an unfair dismissal claim, the Employment Tribunal made an order enabling the employee to adduc
The Second Basis for Exclusion: Human Rights
The second substantial point taken in the grounds of appeal related to “human rights”. Ms Sethi submitted that to admit the disputed evidence would involve the Tribunal itself infringing the human rights of the governors who were members of the relevant panels. That, she argued, would be inconsistent with the duty imposed on a Tribunal (or any other public body) by section 6 of the Human Rights Act 1998 not to act incompatibly with convention rights.
The rights that Ms Sethi sought to invoke were the rights as enjoyed by the individual governors under Article 8 of the European Convention on Human Rights. That provides:
ARTICLE 8
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.
Ms Sethi reminded us that the European Court of Human Rights had found Article 8 to be infringed in cases where public authorities had recorded or intercepted private conversations and sought to rely on those recordings in evidence. We were referred to Taylor-Sabori v United Kingdom (Application 47114/99, 22 October 2002) which has recently been followed and applied in Elahi v United Kingdom (Application 30034/04, 20 June 2006). She submitted that an order allowing into the public domain, at a Tribunal hearing, the transcriptions of remarks of the panel members made at the disciplinary and appeal hearings (and most particularly during the “deliberations”) would involve an infringement of their rights “to respect for … private and family life”. This extraordinarily broad submission was not supported by any authority.
We reject entirely the proposition that what occurred could possibly amount to the interference with any aspect of the right to “respect for… family life” enjoyed by any member of the panels of governors. The integrity of the relationship between a governor and a member of his or her family is not touched at all by admission of the evidence in question in this case.
In relation to the right to “respect for … private life”, it was submitted that there would be an interference with the governors’ private lives because their privacy would be invaded if their remarks made during “private deliberations” or their observations made during the “open hearings” (which were conducted in the absence of the public) should reach the public domain.
In our judgment, that not a correct analysis of the legal position. Each of the panel members had put themselves forward to carry out an aspect of the important voluntary work undertaken by many individual members of the public in the governance of schools. To that extent they were putting themselves, and the contributions that they made during the course of that work, into the “public” domain whilst acting in that role. It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in that socially-important public or quasi-public function. In our judgment, the privacy element of the right to “respect for …private life” of such a school governor is not engaged at all in the present circumstances.
Even if we are wrong as to that as a matter of principle, there is no actual evidence of any likely or potential interference with the private life of any governor who was a member of either of the two panels in question in this case. Rather, we are invited to accept the general proposition that the governors may be caused upset or disquiet if their remarks reach the public domain. We decline that invitation. This scenario is quite distinguishable from the facts of XXX v YYY (see above) which was relied upon by Ms Sethi and in which this Appeal Tribunal (Mitting J presiding, 9 April 2003) was dealing with the likely impact of public disclosure of certain evidence – in the form of images on a videotape – on the privacy of a child. There, this Tribunal was able to clearly hold at [17]:
“The public description or publication of such images would be severely embarrassing to him as he grows older. A more obvious infringement of his right to respect for his private life is hard to envisage.”
Nothing of that nature emerges in this case.
Even if we had been satisfied that there was an arguable infringement of Article 8(1) of the Convention, we would next have had to direct ourselves to Article 8(2). That contains a broad range of circumstances in which there may be justifiable interference with the Article 8(1) rights. As the European Court of Human Rights has repeatedly held, the provisions of Article 8(2) facilitate a balance between the protection of an individual’s Article 8 rights and the protection of the convention rights and freedoms of others. Certainly, the first step in applying Article 8(2) is that any interference must be “in accordance with the law”. As to that, we need only set out the following passage from Jones v University of Warwick [2003] EWCA Civ 151, [2003] 1 WLR 954 at [27]:
As the Strasbourg jurisprudence makes clear, the Convention does not decide what is to be the consequence of evidence being obtained in breach of Article 8 (see Schenk v Switzerland [1988] 13 EHRR 242 and PG and JH v United Kingdom application no. 44787/98 (25/9/2001 paragraph 76). This is a matter, at least initially, for the domestic courts. Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with the overriding objectives set out in Part 1.1 of the CPR in the exercise of its discretion under Part 32.1, then it is required or it is necessary for the court to make that order. Accordingly, if the court could be said to have breached Article 8.1 by making the order which it has decided the law requires, it would be acting within Article 8.2 in doing so.
In the instant case, the Tribunal had satisfied itself that the evidence – which it had decided was relevant – should be admitted. As Jones itself demonstrates, and as the decision of this Employment Appeal Tribunal in McGowan v Scottish Water (Lord Johnston presiding, 23 September 2004) relied upon by Mr Thorogood exemplifies, a court or tribunal may properly admit relevant evidence even where it has been gathered in breach of an Article 8 right to “privacy” where to do so is adjudged to be necessary in order to secure a “fair” hearing as required by both the common law and Article 6 of the convention. We are not satisfied that the possibility of an infringement of the panel members’ rights under Article 8 would justify an exclusion of the relevant evidence on the facts of this case.
We should record that no argument was advanced to us, or to the Tribunal below, that the admission of the evidence in question during a public hearing might infringe the rights to privacy (whether under Article 8 or otherwise) of the children referred to in the transcripts, the parents of those children, or of the school staff and other witnesses who gave evidence before the panels. If, at the substantive hearing of the present claim, the Tribunal are persuaded that such an infringement may occur they have available their powers under Schedule 1 paragraph 16(1)(b) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 to take certain evidence in private.
No doubt mindful of the fact that another alternative would be for the parties to agree, in advance, that references in all the evidence to children and their parents be anonymised, the Tribunal expressly stated in their reasons (albeit in the course of encouraging alternative resolution of the claim):
“Both parties are reminded that the hearing may well be covered by publicity,
both as to the evidence given during the hearing and the judgment at the end.”
The Third Basis for Exclusion: Illegality
An alternative basis upon which the case for exclusion had been advanced before the Tribunal was, as we have noted, that the recordings had been made “clandestinely”. It may well have been put higher than that by Ms Sethi to the Tribunal, on the basis that the recordings were the result of “unlawfully bugging” the hearing and that they amounted to illegally obtained evidence.
However, before us, Ms Sethi expressly abandoned any contention that the recordings of the proceedings had been in breach of any provision of the criminal law. Ms Sethi did draw our attention to the fact that had the recordings been made of similar discussions conducted over the telephone (rather than face-to-face) there might have been a breach of Part I (“Unlawful and Authorised Interception”) of the Regulation of Investigatory Powers Act 2000. However, Ms Sethi – despite the assertion in her skeleton argument that “… the interception by the Claimant is unlawful…” – ultimately abandoned any contention that there had in fact been any breach of that statute, or of any other statutory provision, in recording the panel proceedings (whether as to the “open hearing” or the “private deliberations”). In particular, it was no part of her case that the recordings amounted to “surveillance” as regulated by Part II of the 2000 Act.
No case was advanced before us that the recordings were made in breach of any contract. As they were not recordings made by a public authority, they could not have been made in contravention of the Human Rights Act 1998. Ms Sethi showed us no relevant statutory equivalent of provisions that might prohibit unauthorised recording of court proceedings or the deliberations of juries.
There is, accordingly, nothing in the proposition that the evidence could be excluded because the recordings were made “illegally” or were the result of any “unlawful interception” (the latter phrase being used in the employers’ skeleton argument). As Ms Sethi correctly recognised, the “clandestine” nature of the recording could not itself be grounds for excluding the admission of the evidence save as part of any general “public policy” justification for exclusion.
The Fourth Basis for Exclusion: Public Policy
As the Chairman clearly recognised, in dealing with this matter on review, if the evidence in this case is to be lawfully excluded that will be so only – on the facts of this case – as a matter of public policy.
On the one hand, there is a clear public policy that claims brought before a court or tribunal should be tried on all the available relevant evidence. On the other hand, there are clear public policy justifications for the occasional exclusion of otherwise relevant evidence.
For example, the important public policy of encouraging parties to negotiate frankly to achieve settlement of disputes has spawned a long-established “without prejudice” rule excluding otherwise relevant evidence which might have come to light in such negotiations (see Bradford & Bingley plc v Rashid [2006] UKHL 37 for a modern restatement of that rule).
This present case may be said to give rise to a similar clash of public policies. Mrs Dogherty asserts that her right (protected by both the common law and Article 6) to a fair hearting on the best available evidence will be damaged or compromised if the recordings are shut-out. The employers urge that the integrity of school governor hearings in staff-related matters will be undermined if the evidence goes in, with the danger that employees will be generally encouraged (by any such decision) to adopt the practice of secretly recording proceedings including “private deliberations” and that governors will be unwilling to serve on such panels.
We have already noted (at paragraph 30 above) that the Employment Tribunal is not strictly bound to apply – in the adjudication of claims before it – the same “rules” on the admission of evidence as would be observed by a Court. The consequence of that may necessarily be that even the long-established rules of evidence adopted by the civil courts and based on public policy (including the “without prejudice” rule) will yield to permit the admission of relevant evidence before a Tribunal in an appropriate case: see BNP Paribas v Mezzotero [2004] IRLR 508, EAT.
By the same token, however, an Employment Tribunal might be said to have power to exclude on general public policy grounds any otherwise admissible relevant evidence. Indeed, the modern position in the civil courts is that a judge enjoys a general discretion to exclude otherwise admissible evidence: Civil Procedure Rule 32.1(2).
Ms Sethi submitted in terms that the recordings in this case (and the transcripts of them) should be excluded on public policy grounds. She reminded us that Mrs Dogherty had known:
that the hearings would be held in private (in the sense that they would not be open to the public);
that the matters canvassed in those hearings would refer to and identify children and their parents;
that the proceedings would be recorded by the Clerk in the Minutes in the normal way;
that she had not sought permission from, or the consent of, any of those involved to the making of her own recording nor informed them of her intention to do so;
that during the periods when she and the employers’ representatives and witnesses had withdrawn from the proceedings, the panel members would have expected that their deliberations would not be recorded by anyone;
and submitted that in those circumstances the evidence should be excluded on broadly the same public policy grounds as would justify the exclusion of evidence of what occurred at in camera hearings of any judicial or quasi-judicial body and/or during the private deliberations of such a body. Her submission was that it would be contrary to the “public interest” if such evidence were to be admitted in this and similar future cases.
True it is that the law in relation to public policy or public interest immunity is not fixed: see Lord Hailsham of St. Marylebone’s statement in D. v. National Society for the Prevention of Cruelty to Children [1978] AC 171, 230, that:
“The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop”.
But as the House of Lords later held in Regina v. Chief Constable of West Midlands Police, ex parte Wiley [1995] 1 AC 274 per Lord Woolf @ p305.
“The recognition of a new class-based public interest immunity requires clear and compelling evidence that it is necessary”.
Given that authoritative judicial indication, we were first concerned as to whether there was any existing “public interest” class into which the present case could be brought.
No such class had been identified by the employers before the Tribunal, in their grounds of appeal or in their skeleton argument. In the course of oral argument we invited Ms Sethi to identify any established “public interest” class upon which she relied. In response, she developed a submission that the instant case fell into the broad class of public policy known as “judicial immunity” or “judicial privilege”.
As has been recognised for over a century, those who conduct judicial proceedings enjoy immunity from suit in relation to their conduct in – and of – those proceedings under the principle of “judicial immunity” or “judicial privilege”. Here, by analogy, it was submitted by Ms Sethi that the governors were acting in a quasi-judicial capacity (particularly on the appeal) and that Mrs Dogherty is seeking to use what they said and did to sustain a claim against them (albeit in their capacity as employers).
Ms Sethi put before us the decisions of the House of Lords in Trapp v Mackie [1979] 1 WLR 377 and of the Court of Appeal in Heath v Commissioner of Police [2004] EWCA Civ 943, [2005] ICR 329 and [2005] IRLR 270. The first established that the rule of judicial privilege was applicable to prevent a witness before a commissioner appointed under a statutory power (to determine a dispute between a headmaster and an education authority over the dismissal of the former) from being sued for malicious falsehood in respect of evidence given before the commissioner. The second decided that the privilege gave immunity from suit for sex discrimination to the police members of a Disciplinary Board established under the Police (Discipline) Regulations and conducting a hearing of a complaint against a police officer. Ms Sethi contended that, by analogy (particularly by reference to Heath), the immunity or privilege extended to the disclosure of the deliberations of a panel of governors in disciplinary and employment matters – at least in relation to hearings such as those convened in Mrs Dogherty’s case.
An obvious issue, therefore, is whether these panels of school governors were conducting “judicial or quasi-judicial proceedings” such as might attract the benefit of judicial privilege.
Having reviewed the impact of the judicial immunity or privilege rule on courts and judicial tribunals, Sir William Wade in Administrative Law (9th Ed) states at p789 that:
“At the other end of the scale it seems obvious that judicial immunity will not extend to an administrative authority merely because its function is denominated judicial or quasi-judicial for the purposes of the rules of natural justice or of control by certiorari; for in those cases the function is basically administrative. Thus no immunity should be enjoyed by an inspector holding a public inquiry.”
That text then offers other examples of agencies and bodies not thought subject of the immunity
and of a more quasi-judicial standing than panels of school governors.
In Halsbury’s Laws (Vol 1(1) at para 199), in concluding a review of the requirements for “judicial privilege”, it is written that:
“It is not, however, sufficient that the tribunal should be acting judicially; it must also be a court or authorised tribunal”.
but the text goes on to explain (at para 200) that a wide range of bodies discharging quasi-judicial functions may also be protected by judicial privilege. For a modern judicial statement of the correct approach to be taken in relation to such quasi-judicial bodies we need only cite the following passages from Heath (above) at [20] to [22]:
20. There is much authoritative jurisprudence on the degree of similarity required of a tribunal as to its constitution, function, procedures and powers with those of a traditional court to render the tribunal’s proceedings “judicial” for this purpose, most notably Royal Aquarium and Trapp v. Mackie [1979] 1 WLR 377, HL. Miss Booth accepted that there are similarities between a police disciplinary tribunal and a traditional court which might, if that question were considered on its own, support a finding that the tribunal is a court to which the rule of absolute immunity attaches. However, notwithstanding her greater reliance on her third ground as to the need for the rule in this context, she did not abandon this original challenge.
21. The nature of the exercise in determining whether a body is to be regarded as “judicial” for the purpose of giving absolute immunity to those involved in its proceedings is not a technical or precise one. It is one of determining its similarity in function and procedures to those of a court of law. It is a matter of fact and degree, one, as Lord Atkin said in O’Connor v Waldron [1935] AC 76. HL, at 81, “not capable of very precise limitation”. Thus, in Royal Aquarium, Lord Esher spoke, at 442 of:
“an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes … [namely] acting … in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it.”
And Lord Atkin in O’Connor v Waldron referred in the same context, and in confirmation of Lord Esher’s proposition, to a tribunal that:
“has similar attributes to a court of justice or acts in a manner similar to that in which such courts act”.
22. In Trapp v Mackie Lord Diplock, after consideration of all or most of the relevant reported authorities over the near century since Lord Esher formulated the test of similarity, identified four aspects for consideration: 1) whether the tribunal is “recognised by law”, 2) whether the issue is “akin to” that of a civil or criminal issue in the courts; 3) whether its procedures are akin to those in civil or criminal courts; and 4) whether the result of its procedures lead to a binding determination of the civil rights of a party or parties. However, at 383-384, he made plain after a detailed analysis of the evidence in the case going to the similarities under those four categories, that satisfaction of one of them would not on its own suffice to attract absolute immunity, and also that failure to satisfy one would not necessarily be fatal to it
Ms Sethi was unable to develop her submission as to why the class of “judicial privilege” should extend to a school governing body (or to committees of governors) whether undertaking the function of determining staff disciplinary matters, or staff appeals against dismissal or, indeed, school admissions. We had no evidence or submissions as to the circumstances of the establishment of the governors’ panels in the instant case, the relevant law or procedures under which they were/are established, nor any submissions in terms addressed to any of the four features identified by Lord Diplock. Without having had any notice of such issues, Mr Thorogood had not come prepared to deal with them.
In the absence of any such evidence or submissions, we are not satisfied that it can be said that the Employment Tribunal erred in law in not excluding the controversial evidence in this case by application of the principle of “judicial privilege” (most particularly as that invitation was never extended to them).
We are far from satisfied that this is such a “plain case” in which Lord Diplock’s four indicia are so obviously satisfied that the Tribunal must have erred in not seeing the present case as one for the application of judicial privilege. To the contrary, the governors in the present case were – on the limited material before us – acting in the same capacity in relation to employment matters as would a panel of senior managers of any other employer. There was no obvious flavour of “judicial” function or authority here such as to require us to hold that an Employment Tribunal must have been satisfied that it was a case for the application of the common law principle.
Even if we are wrong as to that, it is important to recall that the function of judicial privilege is that it provides “immunity from suit” to those who take part in proceedings to which it applies. Here, the privilege would not be being invoked to protect anyone from suit. Mrs Dogherty brings her claim against her employers for unfair dismissal. The witnesses who appeared before the governors’ panels are not being sued. Nor are the individual governors who took part in the proceedings. No authority was put before us to suggest that the privilege extends generally to prevent relevant evidence disclosed in one set of proceedings from being used in subsequent proceedings in which no relief is sought against anyone who took part in, or gave evidence in, the earlier proceedings. That invitation to make a quantum leap in the application of the judicial privilege doctrine was not before the Tribunal. No authority was put before us to sustain it. The failure by the Tribunal to make that leap on the facts before them does not, in our judgment, give rise to any error of law.
If the instant case cannot be brought into any recognised category of public policy exception to the rule that relevant evidence should be admitted, can public policy considerations nevertheless justify exclusion in this particular case? Ms Sethi urged that the disputed evidence should not be admitted because to do so would undermine the whole function of convening these particular hearings out of the public eye. It would be contrary to public policy if a person attending such a hearing could later introduce – at a public tribunal – an unauthorised recording of that hearing – most especially one revealing what had occurred after the parties had been invited to withdraw so that the panel conducting the hearing could adjudicate.
That submission attracts a natural sympathy from any judicial tribunal. It is always somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly and fairly. But even “illegally” obtained evidence is sometimes admitted by force of the relevance of it to the issue in a case. We have therefore approached cautiously the notion that evidence might be excluded under this part of Ms Sethi’s submissions. Although the employers’ case was put on the basis that the Tribunal ought to have wholly disallowed the admission of the transcripts, we consider it appropriate to examine separately the case against admission of the two parts: (1) recordings of the “open hearings” and (2) recordings of the “deliberations”.
As to the former, we are not prepared to hold that the Tribunal should have excluded – on public policy grounds – the recordings of the “open hearing” parts of the panels’ proceedings in the instant case. It was always intended that there would be at least one written record of the “open hearing” parts of the proceedings in the form of the Minutes. In appearance they constitute what (but for Mr Thorogood’s disputes as to their accuracy and adequacy) look like an almost verbatim record. Ms Sethi conceded, correctly, that there could have been no objection to Mrs Dogherty having had her own written record made during the course of the “open hearing” by a shorthand writer or by her own noting of the proceedings.
Notwithstanding that the background to the proceedings was incidents which had taken place in a school and concerning children (and for that reason the proceedings having been held in the absence of the public), it must have been understood by both the employers’ representatives and by Mrs Dogherty that if either of them subsequently raised in litigation some issue with the conduct or result of those proceedings, the Minutes might be properly be referred-to as a record of what had occurred. If the employers’ Minutes are disputed as to accuracy on a relevant issue, as they are in this case, we fail to see what “public policy” could shut-out the production in that litigation of any further or other note of the proceedings that Mrs Dogherty might have made herself or commissioned from, for example, a shorthand writer. By extention of reasoning, the transcriptions of her recordings are such a note. Although the making of a mechanical recording is not as obvious or open a method of obtaining a “script” of what occurred as the employment of a shorthand writer would have been, we can identify no basis of principle upon which this Tribunal might be said to have erred in not excluding the transcripts of the “open hearing” parts of the proceedings. The conclusions reached, and reasons given, in this paragraph and in paragraph 69 are again those of the majority (Mr Recorder Luba and Mr Lewis). For her part, Ms Tatlow does not accept that there is a valid analogy between the admission in evidence of notes openly taken by either of the parties and the admission of transcripts of clandestine and covert recordings. She would have held that the transcripts of such recordings of the “open hearings” ought also to have been ruled inadmissible by the Employment Tribunal on public policy grounds.
No doubt for the reasons set out by the majority, Ms Sethi “concentrated her fire” on the admission of the transcriptions of the “private deliberations”. She submitted that there was an important public interest in the integrity of the private deliberations of a panel adjudicating on any matter of dispute – particularly where all parties to the dispute knew in advance that the adjudicating body would not only deliberate privately but would later promulgate a decision with reasons.
On this aspect, we are (not without hesitation on the part of the majority) unanimously persuaded that the employers are right. Important as the public policy is that a party to proceedings should be able to avail themselves of any relevant evidence, it seems to us that there is in the instant case a contrary and superior public policy dimension that arises. Here, the panel members invited all parties and witnesses before them to withdraw, expressly so that they might deliberate privately. All parties – including Mrs Dogherty and her representative – accepted that invitation without demur on the premise that by doing so they would disable themselves from having any record of what might be said. That will have been underscored by the requested absence of the Clerk at that point, making it clear that no note of the deliberations was being made. Likewise, those participating in the deliberations will have done so on the premise that no one of their number would then disclose or publish what had occurred during the private deliberations. Had one of the parties, or a witness, returned to the hearing-room whilst deliberations were underway, everyone involved would have understood that they would have been asked to leave and that discussion would have stopped whilst they were present.
In our judgment there is an important public interest in parties before disciplinary and appeal proceedings complying with the “ground rules” upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the “right” decision) than the understanding that their deliberations would be conducted in private and remain private. How, otherwise, could a member of that body confidently expose for discussion a doubt concerning some evidence about which he or she was unsure? The failure to maintain respect for the privacy of “private deliberations” in this context would have the important consequences of (1) inhibiting open discussion between those engaged in the task of adjudicating and (2) giving rise to a good deal of potential satellite litigation based on “leaks” by particular members of the adjudicating body or from the clandestine or unauthorised recordings of such proceedings.
We are far from suggesting some new broad class of common-law public interest immunity in the law of evidence. Rather we confine ourselves to the particular circumstances of this case: a claim for unfair dismissal of an employee which raises issues as to the reasonableness of (and the conduct of) the procedures leading to that dismissal and the confirmation of it. More particularly, a case in which, in the course of those procedures, the employee has agreed in advance (with no suggestion of any prejudice or duress) to withdraw whilst the relevant panel deliberated in private, that panel having undertaken to give (and having subsequently given) full reasons for its decision. The balance between the conflicting public interests might well have fallen differently if the claim had been framed in terms of unlawful discrimination, where the decision was taken by a panel which gave no reasons for its decision, and where the inadvertent recording of private deliberations (or the clear account of one of the panel members participating in those deliberations) had produced the only evidence – and incontrovertible evidence – of such discrimination.
Conclusion
In our judgment (by a majority) the Employment Tribunal in the present case was right to permit Mrs Dogherty to put in evidence her transcriptions of the “open hearing” parts of the proceedings she attended but (in our unanimous view) it erred in law in not debarring Mrs Dogherty from making use of her recording and transcription of the Panel’s private deliberations (as appearing, for example, at pages 181 – 201 of the Supplementary Appeal Bundle placed before us). Accordingly, we allow the appeal only to the extent of making that direction which the Tribunal should itself have made namely that: “Mrs Dogherty may not adduce in evidence in support of her claim the transcripts of the private deliberations of the panel members or any evidence derived from them.”
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Director of Public Prosecutions -v- Idah
[2014] IECCA 3
Cite as: [2014] IECCA 3The ruling of Dublin Circuit Criminal Court
24. On the evidence, the learned trial judge, His Honour Judge Desmond Hogan, was asked to rule as to whether the transcripts of these meetings were admissible, that is, whether the information obtained and recorded was governed by the provisions of the Criminal Justice (Surveillance) Act 2009. Counsel for the appellant contended that if it came within the ambit of the Act, the evidence should have been excluded as having been unconstitutionally obtained in breach of the appellant’s right to privacy.
25. The basis of the trial judge’s finding is, of course, fundamental. He ruled that what had taken place were face-to-face meetings and, by reason of that, they did not come within the definition of “surveillance”. He ruled that surveillance meant that there would be actions of a non-participant third party looking at and noting the activities of another party. Turning to the constitutional right of privacy, he held that a right of privacy was not engaged when the activity sought to be recorded was a criminal offence. It is necessary then to consider whether the learned trial judge was correct in law in allowing the content of these transcripts go to the jury. This is without prejudice to the appellant’s right, on any retrial, to object to the admissibility of viva voce evidence of the meetings on other grounds.
The concept of “surveillance”
26. The terms “surveillance” and “surveillance device” are both defined in s. 1 of the 2009 Act. “Surveillance” is defined as meaning:
“(a) monitoring, observing, listening to or making a recording of a particular person or group of persons or their movements, activities and communications, or
(b) monitoring or making a recording of places or things, by or with the assistance of surveillance devices.”
A “surveillance device” is defined in the following way:
““Surveillance device” means an apparatus designed or adopted for use in surveillance, but does not include –
(a) an apparatus designed to visual acuity or night vision, to the extent to which it is not used to make a recording of any person who, or any place or thing that, is being monitored or observed,
(b) a CCTV within the meaning of s. 38 of the Garda Síochána Act 2005, or
(c) a camera, to the extent to which it is used to take photographs of any person who, or anything that, is in a place to which the public have access.”
27. The Oxford English Dictionary defines surveillance as “close observation, especially of a suspected spy or criminal”. The Collins English Dictionary defines the same word as being “close observation or supervision maintained over a person, group, etc., especially one in custody or under suspicion”. It will immediately be seen that the definition is “circular”, in the sense that “surveillance” involves the use of a “surveillance device”. A surveillance device is defined as an apparatus used in surveillance. The definition of surveillance is extraordinarily broad. The court is constrained to interpret and apply the term as it is defined in the statute. The court may not legislate by imparting to the term some narrower meaning which it does not have. The task of definition in a statute is a matter for the legislature. Any amendment to the Act, if deemed necessary, is also a matter for the legislature.
The appellant’s contentions
28. In essence, the appellant states that the trial judge erred in law in holding that the covert recording by An Garda Síochána of meetings held between the appellant and undercover members of the force did not constitute “surveillance” within the meaning of The Criminal Justice (Surveillance) Act 2009. It is said that the learned trial judge, therefore, erred in law in admitting into evidence the recordings and, in particular, erred in holding that the circumstances in which these recordings were made did not breach the appellant’s constitutional right to privacy and/or his rights under Article 8 of the European Convention on Human Rights (“the ECHR”).
The respondent’s submissions
29. Counsel for prosecution submitted, first, that, an authorisation pursuant to the 2009 Act was not, and is not, required for recording conversations in circumstances where a member of An Garda Síochána is a participant. Second, he submitted that the nature of the operations in which UC1 and UC2 were engaged were not “surveillance” within the meaning of the Act. He submitted the appellant had no reasonable expectation of privacy in circumstances where he met two men who had adopted fictitious identities for the purpose of soliciting them to commit a crime, and where there was no suggestion or evidence of entrapment. Were the appellant to hold such an expectation or interest, the two undercover Gardaí would, as a logical consequence, be equally prohibited from giving oral evidence of their conversations. The recording of the conversations could not, therefore, create a “privacy interest”, where none previously existed. Without prejudice to that argument, counsel also submitted that, even if an authorisation pursuant to the Act was required, no constitutional right to privacy of the appellant was breached, and that the judge was entitled to admit the evidence in the exercise of his discretion.
30. In essence, therefore, prosecution counsel’s submission is that the nature of the interaction between UC1, UC2 and the appellant could not be “surveillance” because of the interaction between the Gardaí and the subject of the operation, and that the concepts of “monitoring” and “observing” imported a distance from the subject of those activities. Whilst “listening to” can be an activity carried out by a participant to the conversation, one cannot be said to “listen to” a conversation to which one is a party “by means of a surveillance device”. Counsel contended that the concept of recording is an activity which could be equally carried out by a party to a conversation, or one at a distance, but the word should be read in the light of the Act generally which relates to activities “from afar”. He submitted that further support for that interpretation can be gained from a consideration of the devices said to be “excluded” from the definition of surveillance devices, such as CCTV, binoculars, night vision devices and cameras, all of which imply a monitoring from a distance.
31. On the assumption that compliance with the Act was necessary, counsel for the Director submitted that the intent of the legislation was simply to render lawful activities which previously would not have been such. He cited s. 2(2) of the 2009 Act, which expressly states that,
“Nothing in this Act should render unlawful any activity which would otherwise be lawful”.
He submitted that this was noteworthy in the context of possible authorisations which include the entitlement of An Garda Síochána to enter, if necessary by force, “any place, for the purpose of installing or withdrawing a surveillance device without the consent of the owner” (section 5(6). He accepted that, in that context, the power represented a significant potential curtailment of the inviolability of the dwelling which required express statutory authority.
32. By analogy, counsel urges this court to adopt interpretations of the definitions in the 2009 Act similar to those to be found in the Interception of Postal Packets and Telecommunications Messages (Regulation) Act 1993. Section 1 of the 1993 Act defined “interception” as meaning:
“(a) An act –
(i) that consists of listening or attempted listening to, or the recording or attempted recording, by any means, in the course of its transmission, of a telecommunications message, other than such listening or recording, or such attempt, where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording.
(ii) …”
Counsel submitted that this telecommunications legislation restricted the requirement for an authorisation to a situation where a third party, not privy to the communication, seeks to listen or record.
33. Counsel pointed out that a separate authorisation had been obtained for the purpose of audio and visual recording of the hotel room. He rejected the suggestion in the appellant’s submissions that UC1 had acknowledged that he was engaged in “surveillance”, but, rather, drew attention to the fact that the Garda had denied he was engaged in surveillance but qualified references to monitoring and recording the appellant by saying that “he was with him”.
The right to privacy
34. Prior to considering the procedures adopted by An Garda Síochána in this particular case, it is necessary to consider the nature of the rights which are engaged. The right to privacy, though not specifically guaranteed by the Constitution is a personal right of a citizen which flows from the nature of the State. In Kennedy v Ireland [1987] I.R. 587, Hamilton P. stated that:
“The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely a sovereign, independent and democratic republic”.
However, he went on to observe that this right was not an unqualified right but was subject to the constitutional rights of others, and the requirements of public order, public morality, and the common good.
35. The court accepts that, as the Law Reform Commission pointed out in its Report on Privacy in 1998, a person is entitled to “reasonable expectation of privacy” even in a public place. The Commission’s Report takes care to identify context as being a major factor in determining the extent of the right of privacy and giving rise to a “reasonable expectation of privacy”. The law does not prohibit police surveillance (see Kane v Governor of Mountjoy Prison [1988] I.R. 757). The question is whether covert police activity involving aural and video devices amounts to an interference with private life.
36. As the European Court of Human Rights pointed out in Ludi v Switzerland [1992] 50 E.H.R.R. 173, the closer one is to pure criminal activity then the less is the reasonable expectation of privacy. In Ludi, the objective of the police at the outset had been to arrest, and not merely to observe or gather evidence. There is a continuum ranging from outright participation in crime to fringe, and perhaps unwitting, involvement. That court recognises that intelligence gathering is vital to the work of police force. However, Ludi did not directly address electronic means of covert surveillance. This has not been considered in any Irish authority. In general, there is a discernable qualitative difference between a face-to-face encounter between a suspect and a member of the Gardaí on the one hand, and carrying out surveillance on the other.
37. There can be no doubt that the State may make incursions into the right of privacy in accordance with law. This is particularly the case in circumstances where the State is seeking to provide in relation to “the investigation of arrestable offences, the prevention of suspected arrestable offences and the safeguarding of the State against subversive and terrorist threats”. Nevertheless that law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which public authorities are entitled to resort to such covert measures and it must provide necessary safeguards for the rights of individuals potentially affected. In the view of this court, that is precisely the intent and purpose of the Act of 2009.
38. Indeed, in the particular circumstances of this case, where one is dealing with an alleged plot to import large quantities of controlled drugs, the common good must weigh heavily in the balance. It cannot be said that the accused’s reasonable expectation of privacy extends to involvement in any such alleged illegal enterprise. That is not to say that this accused is left without protection; but to acknowledge that the safeguards granted under the 2009 Act adequately vindicate his rights in this regard.
The definition of “surveillance”
39. This Court considers that there is very considerable merit in the submission by counsel for the prosecution that the essential nature of surveillance is that it is covert and at a remove from the subject. “Surveillance” would not traditionally have been considered to include the obtaining or recording of information actually disclosed to and in the presence of an undercover garda by a person or persons unaware of the covert purpose of the personal contact.
40. It has long been accepted that the result of interpretation clauses in statutes can be to give an artificial meaning to words and to bring incongruous things within the meaning of the statute. In Savoy Hotel Company v. London County Council [1900] 1 Q.B. 665, Channell J. stated at p. 669:
“…for the result of an interpretation clause is frequently to bring the most incongruous things within the operation of a statute”.
In Lindsay and Others v. Cundy and Another [1876] 1 Q.B.D. 348, Blackburn J. stated at p. 358:
“. . . but in the interpretation clause (s. 1) which is a modern innovation and frequently does a great deal of harm, because it gives a non-natural sense to words which are afterwards used in a natural sense, without noticing the distinction . . ..”
Similarly in Bradley v. Baylis [1881] 8 Q.B.D. 195, Brett L.J. stated at p. 230:-
“It seems to me that nothing could be more difficult and nothing more involved, than these statutes and that that difficulty arises from the fact of Parliament insisting upon saying that things are what they are not.”
A court is not necessarily entitled to interfere merely by reason of this fact, but it does raise the issue of whether the legislature intended a particular result.
41. It is, therefore, not generally open to a court to impart any other meaning or to cut down a definition found in the interpretation section of an Act, even where this results in a consequence which is unnatural or unexpected. Despite the court’s reservations as to the correctness as the choice of the term “surveillance” to cover all activities set out in interpretation section (s. 1), and the failure to elaborate on the extent of those activities, the court considers that the effect of s. 1 of the 2009 Act was to enlarge the traditional and well understood meaning of “surveillance”.
The application of the 2009 Act
42. Which actions in this case, if any, amount to surveillance? The express terms of the 2009 Act seek to confine surveillance to specified activities carried out “by or with the assistance of surveillance devices.” If such devices are not used, then the Act does not apply. It, therefore, has no application to other investigative techniques. Section 2(2) of the 2009 Act provides:
“Nothing in this Act shall render unlawful any activity that would otherwise be lawful.”
Section 14(2) provides:
“Nothing in this Act is to be construed as prejudicing the admissibility of information or material obtained otherwise than as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 .”
43. The Court must examine the actions of the members of An Garda Síochána to determine whether they fall within the scope of the Act. To do so, the Court must ask itself how the information or material was obtained. Subject to any other technical objection, the admissibility of evidence obtained directly by gardaí through their own senses, without any assistance in the form of a surveillance device, is unaffected by the 2009 Act. Therefore, evidence will fall into one of two distinct categories, evidence which is obtained “by or with the assistance of a surveillance device” and evidence which is not.
Information obtained otherwise than as a result of surveillance
44. Although UC1 was wearing a surveillance device, his interaction with the accused was not “by or with the assistance of a surveillance device”. Similarly, the interactions between UC2 and the accused were not facilitated or aided by such a device. Therefore, these face-to-face communications do not amount to “surveillance” and fall outside the scope of the Act. Subject to any other objection, there is nothing in the 2009 Act to prevent these officers from testifying as to what was said in the exchanges on the 15th, 17th and 19th September 2010.
45. Even if the Act of 2009 had not been enacted, it would not be unlawful, (subject to arguments based on the constitutional right to privacy and perhaps on Articles of the European Convention on Human Rights) for an undercover member of An Garda Síochána in the course of such an investigation as is mentioned in the preamble to the Act of 2009 to make personal contact with, or to speak to another person for the purpose of obtaining information where that other person is entirely unaware of the covert purpose of the meeting.
46. This Court considers that it was not the intention of the legislature to include within the definition of “surveillance”, investigative practices and procedures which did not require the protection of the Act in order to be lawful. To bring such practices and procedures, already subject to legal control, within the terms of the 2009 Act, could well lead to a substantial reduction in the benefits to the public good and the security of the State which the legislature was seeking to achieve in enacting the 2009 Act. A court is not under a duty to “readily adopt an interpretation which leads to an artificial or absurd result” (per Kearns J. in Director of Public Prosecutions v Moorehouse [2006] I.R. 421 at p. 444).
Information or materials obtained as a result of “surveillance”
47. However, simultaneous to these interactions, surveillance was being conducted through the use of a surveillance device worn by UC1. Other officers were or could have been “listening to” the transmitted exchanges. Recordings were either directly or indirectly made of the exchanges between the undercover police officers and the accused. Neither activity would have been possible without the use of a surveillance device. These recordings were later transcribed and the transcripts were given to the jury at the trial. The admissibility of these recordings and transcripts falls to be decided within the ambit of the 2009 Act.
The admissibility of evidence obtained pursuant to the authorisation
48. As noted earlier, the Gardaí did not comply with a requirement of the authorisation granted for the period between the 14th and 18th of September, 2010. The recordings were to be conducted in a particular location but, in fact, occurred in different locations, not covered by the authorisation. However, this failure does not render any information or materials obtained under this authorisation automatically inadmissible. The terms of s. 14 clearly demonstrate that a failure to comply with the requirements of an authorisation or approval does not, in itself, present an insuperable obstacle to the information being introduced and possibly admitted in evidence.
49. Section 14(4) of the Act grants a discretion to a trial judge to admit evidence obtained through surveillance “notwithstanding any failure by any member of the Garda Síochána … to comply with a requirement of the authorisation or approval concerned”. This not an absolute discretion, but one which is dependent on the intentions of the member(s) concerned and the interests of justice. In full, s.14(4) of the Act of 2009, provides:
“(a) Information or documents obtained as a result of surveillance carried out under an authorisation or under an approval granted in accordance with section 7 or 8 may be admitted as evidence in criminal proceedings notwithstanding any failure by any member of the Garda Síochána, member of the Defence Forces or officer of the Revenue Commissioners concerned to comply with a requirement of the authorisation or approval concerned, if the court, having regard in particular to the matters specified in paragraph (b), decides that –
(i) the member or officer concerned acted in good faith and that the failure was inadvertent, and
(ii) the information or document ought to be admitted in the interests of justice.
(b) The matters referred to in paragraph (a) are the following:
(i) whether the failure concerned was serious or merely technical in nature;
(ii) the nature of any right infringed by the obtaining of the information or document concerned;
(iii) whether there were circumstances of urgency;
(iv) the possible prejudicial effect of the information or document concerned;
(v) the probative value of the information or document concerned.”
50. There is no evidence of any mala fides or deliberative or coercive act by members of An Garda Síochána. It was the evidence of Detective Superintendent John O’Driscoll that there was, in September, 2010, a bona fide difference of opinion within the ranks of senior officers in the Garda Síochána as to whether or not the activity of obtaining and recording information disclosed to and in the presence of an undercover garda by a suspected malefactor, who was unaware of the covert purpose of the meeting, required authorisation under the 2009 Act, it being then a relatively new and untried piece of legislation (it became operational on the 12th July, 2009). It was for the trial judge to weigh the factors contained in s. 14(4)(a) and (b) in coming to decision whether or not to admit the evidence obtained. He had the benefit of hearing all the evidence in the case and assessing their demeanour. This Court following a long-established dicta of the Superior Courts will not attempt to second-guess a trial judge in the exercise of his discretion unless there is shown to be a manifest error in his reasoning. Given the evidence of confusion in the ranks of senior officers of An Garda Síochána as to the scope and administration of the provisions of the 2009Act, then a relatively new Act, this court is not convinced that a manifest error has been shown in the judge’s reasoning and, therefore, will not interfere with his decision to admit the transcripts of the recordings of the 15th and 17th September, 2010.
The admissibility of evidence obtained pursuant to the approval – the urgency issue
51. The approval for surveillance provided for in s. 7(2) of the Criminal Justice (Surveillance) Act 2009 purporting to permit the use of “a surveillance device” capable of being covertly placed in a jacket was given by Detective Superintendent William Johnson on the morning of the 19th September, 2010, to Detective Superintendent John O’Driscoll. This was for surveillance on the 19th September, 2010, and was for a limited time. The approval here is to be distinguished from a judicial authorisation granted in the context of the incursion into the constitutional right engaged.
52. However before “approval” for surveillance is granted by a superior officer of An Garda Síochána, s. 7(2) of the 2009 Act provides that the issuing officer must be satisfied that one or more conditions of urgency as outlined in the subsection apply. These include absconsion, obstruction of justice, destruction of evidence or the security of the State. Neither Detective Superintendent Johnson, nor Detective Superintendent O’Driscoll made any notes as to the circumstances or the grounds upon which the “approval” was issued. Notwithstanding the absence of any such notes, both senior officers stood over the proposition that “circumstances of urgency” were discussed between them prior to the granting of the “approval”. But these were insufficiently specific. No reasonable explanation was, however, given to the trial court for the failure to obtain a further judicial “authorisation” or renewal of the exiting one.
53. In DPP v Peter Byrne [2003] 4 I.R. 423, the Supreme Court, in interpreting the provisions of s. 8(2) of the Criminal Justice (Drug Trafficking) Act 2006 (providing for the issue of a search warrant by an officer of An Garda Síochána in circumstances of urgency), held that an application for a search warrant by a member of an Garda Síochána had to be made to a District Court judge or a peace commissioner unless the very limited circumstances permitting the application to be made to a superintendent were present, and those circumstances had to be demonstrated for the warrant to be valid. Hardiman J. stated:
“…it is not the case that An Garda Síochána are free to choose whether they will apply for a warrant to a judge or a peace commissioner or to a superintendent. They must apply to a judge or a peace commissioner unless the very limited circumstances which permit them to apply to a superintendent are present. These circumstances must be demonstrated to be present for the superintendent’s warrant to be valid … It may indeed have been impractical to get a district judge or a peace commissioner at that moment but, as to whether that justification can prevail when there has been a long period of surveillance and when an urgent call was made to the Chief Superintendent to get him to attend and no call was made to any other person entitled to issue a warrant, we need say no more other than that a grave legal issue arises.”
The observations made in the Byrne case are very much on point on this issue. An Garda Síochána are not free to choose whether they will apply for an authorisation to a judge or an approval from a superior officer. The Gardaí must apply to a judge, unless identified circumstances of urgency are present when an approval may be valid. When there is no evidence that any attempt was made to apply to a District Judge for variation or renewal of an authorisation, and where there is no clear evidence of one of the exceptions provided for in the section, the State has failed to demonstrate that the approval was validly granted. It is now well known that District Judges can be available for applications of this type at any time, particularly so when the relevant information as to the different departure date, the 19th September, 2010, was available two days earlier on the 17th September, 2010, a Friday.
The interaction between this approval and s. 14(4) of the 2009 Act
54. The statutory position in Byrne differs from this case in one important particular. Section 8(2) of the Criminal Justice (Drug Trafficking) Act 1996, which was in issue in Byrne is not accompanied in the other sections of the 1996 Act by a section in similar terms to s. 14(4) of the 2009 Act, granting a discretion to trial judge to admit evidence obtained where there has been non-compliance. This Court must therefore consider the failure to apply for an authorisation in the period available in the context of the s. 14(4).
55. What is the extent of the discretion afforded to a trial judge by s. 14(4)? It appears to the Court that the discretion is limited to the admission of evidence of information or material obtained where there has been a failure to comply with a requirement of that authorisation or approval. It does not extend to information or materials obtained under an invalid authorisation or approval as s. 14(4) is dependent on there being “an authorisation or … an approval granted in accordance with section 7 or 8”. In other words, for s. 14(4) to apply, a validly granted authorisation or approval is a pre-requisite. That prerequisite is not satisfied on the evidence.
56. In light of the findings above that there were no circumstances of urgency in which it would be necessary to grant an approval, and that, therefore, no valid approval could issue under s. 7, it follows that the trial judge would not have had a discretion under s. 14(4) to admit the evidence in respect of the recordings/transcripts of the conversation on the 19th September, 2010. These materials should not have been made available to a jury.
Conclusions
57. In summary, therefore, the court concludes that although the undercover Gardaí were participants in a “surveillance” operation, they were equally engaged in normal investigative work, independent of any “surveillance device”. As such, and subject to admissibility otherwise, the undercover gardaí are not affected in their ability to give viva voce evidence of what they perceived through their own senses in their interactions with the accused in any retrial by virtue of the 2009 Act.
58. However, the actions of the gardaí in recording/transmitting the exchanges between the 15th and 19th did amount to “surveillance”. This does not automatically render the evidence obtained in that manner inadmissible. Rather, it must be considered in the context of s.14(4) of the 2009 Act, which grants a trial judge a discretion to admit “surveillance” evidence obtained in non-compliance with a valid authorisation/approval if certain conditions had been satisfied. That is what has happened here in respect of the recordings obtained pursuant to the authorisation covering the period from the 14th to the 18th September, 2010. This Court sees no manifest error by the trial judge in the exercise of his discretion and will not interfere with his decision to admit this evidence.
59. However, this discretionary power of the trial judge under s. 14(4) does not extend to evidence obtained where there has been no valid authorisation or approval. This Court deems the approval granted for the 19th September, 2010, to be invalid as there is no evidence that any circumstances of urgency, as prescribed by s. 7(2) of the 2009 Act, were present. Absent clear compliance with the provisions thereof, the conclusion of this court is that the admissibility of the transcripts of the recordings on that date should not have been permitted.
60. As relevant and inadmissible evidence was been placed before the jury, the court has no alternative but to quash the conviction and order a retrial.
Gabriele WEBER and Cesar Richard SARAVIA v Germany
– 54934/00
[2006] ECHR 1173 46 EHRR SE5, (2008) 46 EHRR SE5, [2006] ECHR 1173THE FACTS
1. The first applicant, Ms Gabriele Weber, is a German national. The second applicant, Mr Cesar Richard Saravia, is a Uruguayan national. Both applicants live in Montevideo (Uruguay). They were represented before the Court by Mr W. Kaleck, a lawyer practising in Berlin, and by Mr E. Schwan, a university professor in Berlin. The German Government (“the Government”) were represented by their Agents, Mr K. Stoltenberg, Ministerialdirigent, and, subsequently, Mrs A. Wittling-Vogel, Ministerialdirigentin, of the Federal Ministry of Justice.
A. The circumstances of the case
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The case concerns several provisions of the Act of 13 August 1968 on Restrictions on the Secrecy of Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, as modified by the Fight against Crime Act of 28 October 1994 (Verbrechensbekämpfungsgesetz).
4. It notably concerns the extension of the powers of the Federal Intelligence Service (Bundesnachrichtendienst) with regard to the recording of telecommunications in the course of so-called strategic monitoring, as well as the use (Verwertung) of personal data obtained thereby and their transmission to other authorities. Strategic monitoring is aimed at collecting information by intercepting telecommunications in order to identify and avert serious dangers facing the Federal Republic of Germany, such as an armed attack on its territory or the commission of international terrorist attacks and certain other serious offences (see in detail “Relevant domestic law and practice” below, paragraphs 18 et seq.). In contrast, so-called individual monitoring, that is, the interception of telecommunications of specific persons, serves to avert or investigate certain grave offences which the persons monitored are suspected of planning or having committed.
5. The first applicant is a freelance journalist who works for various German and foreign newspapers, radio and television stations on a regular basis. In particular, she investigates matters that are subject to the surveillance of the Federal Intelligence Service, notably armaments, preparations for war, drug and arms trafficking and money laundering. In order to carry out her investigations, she regularly travels to different countries in Europe and South and Central America, where she also meets the persons she wants to interview.
6. The second applicant, an employee of Montevideo City Council, submitted that he took messages for the first applicant when she was on assignments, both from her telephone and from his own telephone. He then transmitted these messages to wherever she was.
7. On 19 November 1995 the applicants lodged a constitutional complaint with the Federal Constitutional Court.
8. They alleged that certain provisions of the Fight against Crime Act amending the G 10 Act disregarded their fundamental rights, notably the right to secrecy of telecommunications (Article 10 of the Basic Law), the right to self-determination in the sphere of information (Article 2 § 1 and Article 1 § 1 of the Basic Law), freedom of the press (Article 5 § 1 of the Basic Law) and the right to effective recourse to the courts (Article 19 § 4 of the Basic Law).
9. In the applicants’ submission, technological progress made it possible to intercept telecommunications everywhere in the world and to collect personal data. Numerous telecommunications could be monitored, in the absence of any concrete suspicions, with the aid of catchwords which remained secret. 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.
10. The Federal Constitutional Court, having held a hearing, delivered its judgment on 14 July 1999 (running to 125 pages). It found that the constitutional complaint lodged by the second applicant was inadmissible. The court noted that a constitutional complaint could be lodged directly against a statute if the person concerned could not know whether there had actually been an implementing measure applying the statute to him or her. The complainant, however, had to substantiate sufficiently his or her argument that his or her fundamental rights were likely to be breached by measures taken on the basis of the impugned statute.
11. The Federal Constitutional Court noted that it was irrelevant that the applicants did not reside in Germany, because the impugned provisions were aimed at monitoring international telecommunications. However, it held that, unlike the first applicant, the second applicant had failed to substantiate sufficiently his claim that his rights under the Basic Law were likely to be interfered with by measures based on the impugned provisions of the amended G 10 Act. In the absence of any further details, the mere fact that he dealt with the first applicant’s telecommunications in her absence was not sufficient to demonstrate this.
12. Partly allowing the first applicant’s constitutional complaint, the Federal Constitutional Court held that certain provisions of the Fight against Crime Act were incompatible or only partly compatible with the principles laid down in the Basic Law (see in detail “Relevant domestic law and practice” below, paragraphs 18 et seq.). In particular section 3(1), first and second sentence, point 5, section 3(3), (4), (5), first sentence, (7), first sentence, (8), second sentence, and section 9(2), third sentence of the Act were found to be incompatible with Article 10, Article 5 or Article 19 § 4 of the Basic Law (see paragraphs 26 et seq.). It fixed a deadline until 30 June 2001 for the legislature to bring the situation into line with the Constitution.
13. On 29 June 2001 a new version of the G 10 Act entered into force (BGBl. I 2001, pp. 1254, 2298) and the G 10 Act in its version as amended by the Fight against Crime Act of 28 October 1994 ceased to apply.
B. Relevant domestic law and practice
1. The Basic Law
14. The Basic Law provides for the following fundamental rights, in so far as relevant:
Article 5
Right to freedom of expression
“(1) Everyone shall have the right freely to express and disseminate his opinions in speech, writing and pictures and freely to obtain information from generally accessible sources. Freedom of the press and freedom of reporting on the radio and in films shall be guaranteed. There shall be no censorship.
(2) These rights shall be subject to the limitations laid down by the provisions of the general laws and by statutory provisions aimed at protecting young people and to the obligation to respect personal honour.”
Article 10
Secrecy of mail, post and telecommunications
“(1) Secrecy of mail, post and telecommunications shall be inviolable.
(2) Restrictions may be ordered only pursuant to a statute. Where such restrictions are intended to protect the free democratic constitutional order or the existence or security of the Federation or of a Land, the statute may provide that the person concerned shall not be notified of the restriction and that review by the courts shall be replaced by a system of scrutiny by agencies and auxiliary agencies appointed by the people’s elected representatives.”
Article 19
Restriction on basic rights
“(4) If a person’s rights are violated by a public authority he may have recourse to the courts. If no other jurisdiction has been established, the civil courts shall have jurisdiction. Article 10 § 2, second sentence, remains unaffected by this paragraph.”
15. The separation of legislative powers between the Federation and the Länder is laid down in Articles 70 et seq. of the Basic Law. Pursuant to Article 70 § 1 the Länder, in principle, have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Such legislative power is conferred on the Federation, in particular, in Article 73:
“The Federation shall have exclusive power to legislate (ausschließliche Gesetzgebungskompetenz) on:
1. foreign affairs and defence, including the protection of civilians;
…”
2. The Act of 13 August 1968 on Restrictions on the Secrecy of Mail, Post and Telecommunications
16. Being the statute envisaged by Article 10 § 2, second sentence, of the Basic Law (cited above, paragraph 14), which provides for exceptions to the general rule of inviolability of telecommunications, the Act of 13 August 1968 on Restrictions on the Secrecy of Mail, Post and Telecommunications (Gesetz zur Beschränkung des Brief-, Post- und Fernmeldegeheimnisses), also called “the G 10 Act”, lays down the conditions under which the authorities may introduce the restrictions referred to in that provision of the Basic Law.
17. In a judgment delivered on 6 September 1978 (Klass and Others v. Germany, Series A no. 28) the Court held that the provisions of the G 10 Act of 13 August 1968, in its original versionand as regards the monitoring of individuals, did not contravene the Convention. It found that the German legislature was justified in considering that the interference resulting from the legislation in question with the rights guaranteed by Article 8 § 1 of the Convention was necessary in a democratic society within the meaning of paragraph 2 of that Article. The Court also considered that the remedies provided for in the G 10 Act complied with the requirements of Article 13 of the Convention.
3. The Fight against Crime Act of 28 October 1994 in the light of the Federal Constitutional Court’s judgment of 14 July 1999
(a) Legislative background
18. The Federal Act of 28 October 1994 on the Fight against Crime amended the G 10 Act. Among other things, it extended the range of subjects in respect of which “strategic monitoring” (as opposed to monitoring of individuals) could be carried out. In the original version of the G 10 Act such monitoring was permitted only in order to detect and avert the danger of an armed attack on the Federal Republic of Germany and at that time was therefore merely focused on the States belonging to the Warsaw Pact. Furthermore, owing to technical progress it had become possible to identify the telephone connections (Anschlüsse) involved in an intercepted telecommunication.
19. Pursuant to the provisions of the G 10 Act, which either remained unchanged by the Fight against Crime Act or were not contested in the present case, the Offices for the Protection of the Constitution of both the Federation and the Länder (Verfassungsschutzbehörden des Bundes und der Länder), the Military Counter-Intelligence Service (Militärischer Abschirmdienst) and the Federal Intelligence Service were entitled to monitor and record telecommunications within their own sphere of activities (section 1(1) of the G 10 Act). Monitoring of individuals was limited to serious threats to national security (for example, high treason or threatening the democratic order) and was permissible only if less intrusive means of investigation had no prospect of success or were considerably more difficult (section 2 of the G 10 Act). As to strategic monitoring, only the head of the Federal Intelligence Service or his deputy were entitled to lodge an application for a surveillance order. The application had to be lodged in writing, had to describe and give reasons for the nature, scope and duration of the measure and had to explain that other means of carrying out the investigations either had no prospect of success or were considerably more difficult (section 4 of the G 10 Act).
20. Restrictions on the secrecy of telecommunications were to be ordered by the Federal Minister assigned by the Chancellor or the highest authority of the Länder (in respect of applications by their Offices for the Protection of the Constitution). The order was made in writing and specified the exact nature, scope and duration of the monitoring measure. The duration of the measure was to be limited to a maximum of three months; the execution of the measure could be prolonged for a maximum of three months at a time as long as the statutory conditions for the order were met (see section 5 of the G 10 Act).
21. The monitoring measures authorised were to be carried out under the responsibility of the requesting authority and under the supervision of a staff member qualified to hold judicial office. Monitoring had to be discontinued immediately if the conditions of the monitoring order were no longer met or the measure was no longer necessary (section 7 of the G 10 Act).
22. Section 3(4) provided that the Federal Intelligence Service was to verify whether the personal data obtained by measures taken under subsection 1 of section 3 were necessary to pursue the aims laid down in that subsection.
23. The Federal Constitutional Court found that in its present version, section 3(4) was incompatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It found that the provision did not contain sufficient safeguards to guarantee that personal data which were not destroyed or deleted as being unnecessary for the purposes of the Federal Intelligence Service would be used only for the purposes which had justified their collection. Furthermore, the provision also failed to comply with the identification requirements flowing from Article 10. In addition, there were insufficient safeguards to guarantee that the Federal Intelligence Service would only use such data as were relevant for the dangers listed in section 3(1). Such safeguards should also ensure that the Federal Intelligence Service would take into account the important concerns of non disclosure of sources and confidentiality of editorial work as protected by the freedom of the press under Article 5 § 1 of the Basic Law. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(4) was to be applied only if the data were specially marked and were not used for purposes other than those listed in section 3(1).
24. Monitoring measures were supervised by two bodies, the Parliamentary Supervisory Board and the so-called G 10 Commission (see section 9 of the G 10 Act). At the relevant time, the Parliamentary Supervisory Board consisted of nine members of parliament, including representatives of the opposition. The Federal Minister authorising monitoring measures had to inform the board at least every six months about the implementation of the G 10 Act (section 9(1) of the G 10 Act).
25. The G 10 Commission consisted of a president who was qualified to hold judicial office and three additional members who were appointed by the Parliamentary Supervisory Board for the duration of one legislative term and who were independent in the exercise of their functions (see section 9(4) of the G 10 Act). The Federal Minister authorising surveillance measures had to inform the G 10 Commission monthly about planned monitoring measures and had to obtain its consent (section 9(2) of the G 10 Act; see in detail below, paragraphs 55-58). Moreover, the Federal Minister had to inform the Commission whether or not persons concerned by such measures had been notified of them. If the Commission decided that notification was necessary, the Federal Minister had to arrange for it to be given without undue delay (section 9(3) of the G 10 Act).
(b) Section 3(1) of the amended G 10 Act: Dangers for the avoidance of which monitoring of telecommunications could be ordered
26. Section 1(1), points 1 and 2, in conjunction with section 3(1), first and second sentence, authorised the monitoring of wireless telecommunications, that is, telecommunications which were not effected via fixed telephone lines, but, for example, via satellite connections (Überwachung nicht leitungsgebundener Fernmeldeverkehrsbeziehungen).
27. Section 3(1), first sentence, provided that restrictions on the secrecy of telecommunications could be ordered by the competent Federal Minister with the approval of the Parliamentary Supervisory Board, on an application by the Federal Intelligence Service, for international wireless telecommunications. Under the second sentence of that provision, such restrictions were permitted only in order to collect information about which knowledge was necessary for the timely identification and avoidance of certain dangers, namely
an armed attack on the Federal Republic of Germany;
the commission of international terrorist attacks in the Federal Republic of Germany;
international arms trafficking within the meaning of the Control of Weapons of War Act and prohibited external trade in goods, data processing programmes and technologies in cases of considerable importance;
the illegal importation of drugs in substantial quantities into the territory of the Federal Republic of Germany;
the counterfeiting of money (Geldfälschung) committed abroad;
the laundering of money in the context of the acts listed under points 3 to 5. Pursuant to section 3(1), third sentence, restrictions on the secrecy of telecommunications could also be ordered for telecommunications via fixed telephone lines and for mail in order to identify and avert the dangers listed in section 3(1), second sentence, point 1.
28. The Federal Constitutional Court found that, pursuant to Article 73, point 1, of the Basic Law (see paragraph 15 above), the federal legislature had exclusive legislative power to regulate the matters listed in section 3(1) of the amended G 10 Act, as they concerned foreign affairs.
29. However, the Federal Constitutional Court took the view that allowing the monitoring of telecommunications in order to prevent the counterfeiting of money abroad, in accordance with point 5 of section 3(1) in its present wording, constituted a disproportionate interference with the secrecy of telecommunications as protected by Article 10 of the Basic Law. It argued that this danger as such could not be considered to be as serious as an armed attack on the German State or any of the other dangers listed in section 3(1). The counterfeiting of money should therefore be included in section 3(1) only if it was restricted to cases in which it threatened the monetary stability of the Federal Republic of Germany. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(1), second sentence, point 5, was to be applied only if the counterfeiting of money abroad threatened monetary stability in Germany.
30. In practice, wireless telecommunications (as opposed to telecommunications via fixed telephone lines) comprised some ten per cent of the total volume of telecommunications at the relevant time. However, given technical progress, the volume of such telecommunications was expected to rise in the future.
31. Technically, telecommunications via satellite links (with the satellites being positioned some 36,000 km above the equator) could be intercepted from sites in Germany if the signal reflected by the satellite (the “downlink”) covered the area in which the station was located. The area covered by the satellite beam depended on the satellite technology used. Whereas signals downlinked by older satellites often “beamed” across one third of the earth’s surface, more modern satellites could concentrate their downlink on smaller areas. Signals could be intercepted everywhere within the area covered by the beam. International radio relay links (Richtfunkstrecken) could be intercepted from interception sites on German soil only if the radio relay transmission was effected within close proximity of these sites.
(c) Section 3(2) of the amended G 10 Act: Monitoring through catchwords
32. Pursuant to section 3(2), the Federal Intelligence Service was only authorised to carry out monitoring measures with the aid of catchwords (Suchbegriffe) which served, and were suitable for, the investigation of the dangers described in the monitoring order (first sentence). The second sentence of that provision prohibited the catchwords from containing distinguishing features (Identifizierungsmerkmale) allowing the interception of specific telecommunications. However, this rule did not apply to telephone connections situated abroad if it could be ruled out that connections concerning German nationals or German companies were deliberately being monitored (third sentence). The catchwords had to be listed in the monitoring order (fourth sentence). The execution of the monitoring process as such had to be recorded in minutes by technical means and was subject to supervision by the G 10 Commission (fifth sentence). The data contained in these minutes could be used only for the purposes of reviewing data protection and had to be deleted at the end of the year following their recording (sixth and seventh sentences).
d. Section 3(3) of the amended G 10 Act: Restrictions on the permitted use of personal data
33. Section 3(3), first sentence, provided that personal data (personenbezogene Daten) obtained through the interception of telecommunications could only serve the prevention, investigation and prosecution of offences listed in section 2 of the Act and in certain other provisions, notably of the Criminal Code. These offences included, in particular, high treason against the peace or security of the State, crimes threatening the democratic order, the external security of the State or the security of the allied forces based in the Federal Republic of Germany, the formation of terrorist associations, murder, manslaughter, robbery, the forgery of payment cards or cheques, fraud relating to economic subsidies, infiltration of foreigners and the production, importation and trafficking of illegal drugs. Personal data thus obtained could be used only if the person concerned was either subject to individual monitoring under section 2 of the Act or if there were factual indications (tatsächliche Anhaltspunkte) for suspecting a person of planning, committing or having committed one of the offences mentioned above. This catalogue of offences for the investigation of which knowledge obtained by strategic monitoring could be used was considerably enlarged by the amendment of the G 10 Act at issue.
34. Pursuant to section 3(3), second sentence, the obligation on the Federal Intelligence Service to inform the Federal Government of its findings obtained by strategic monitoring, including personal data, under section 12 of the Act on the Federal Intelligence Service remained unaffected.
35. The Federal Constitutional Court found that section 3(3), second sentence, in its present version, failed to comply with Article 10 and Article 5 § 1, second sentence, of the Basic Law. The provision did not contain sufficient safeguards to guarantee that the duty of the Federal Intelligence Service to report to the Federal Government, which included the transmission of personal data, would be performed solely for the purposes which had justified the collection of the data (Zweckbindung). Furthermore, the provision failed to comply with the identification requirements (Kennzeichnungspflicht) flowing from Article 10. Ensuring that personal data were not used for illegal purposes was possible only if it remained discernible that the data concerned had been obtained by means of an interference with the secrecy of telecommunications. Likewise, there were no safeguards ensuring that the Federal Government did not keep or use the personal data transmitted to them for purposes other than those listed in section 3(1). The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence, was to be applied only if the personal data contained in the report to the Federal Government were marked and remained bound up with the purposes which had justified their collection.
(e) Section 3(5) of the amended G 10 Act: Transmission of data to other authorities
36. Section 3(5), first sentence, provided that the data obtained in the circumstances described in subsection 1 of section 3 had to be transmitted to the Offices for the Protection of the Constitution of the Federation and of the Länder, to the Military Counter-Intelligence Service, to the Customs Investigation Office (Zollkriminalamt), to the public prosecutor’s offices and to certain police services for the purposes laid down in subsection 3 of section 3 in so far as this was necessary for the recipient authorities to carry out their duties.
37. Pursuant to section 3(5), second sentence, the decision to transmit data was to be taken by a staff member who was qualified to hold judicial office.
38. The Federal Constitutional Court found that the federal legislature’s exclusive legislative power under Article 73, point 1, of the Basic Law (see paragraph 15 above) to regulate matters concerning foreign affairs also covered the transmission to other authorities of information obtained by the Federal Intelligence Service in the performance of its tasks as provided for in section 3(5) of the amended G 10 Act. The federal legislature merely had to provide guarantees that the further use of the data did not disregard the primary function of the monitoring measures.
39. The Federal Constitutional Court further found that section 3(5) was not fully compatible with Article 10 and Article 5 § 1, second sentence, of the Basic Law. It held that Article 10 did not prohibit the transmission to the authorities listed in section 3(5), first sentence, of information which was relevant for the prevention and investigation of criminal offences. This finding was not called into question by the fact that the initial collection of data by means of the random interception of telecommunications in order to prevent or investigate offences, without any prior suspicion of a specific offence being planned or having been committed, would breach Article 10.
40. However, in the opinion of the Federal Constitutional Court, the transmission of data under section 3(5), first sentence, in its present version, disproportionately interfered with the right to secrecy of telecommunications and freedom of the press. The transmission of data constituted a further serious interference with the secrecy of telecommunications, because criminal investigations could be instituted against persons concerned by the interception of telecommunications which had been carried out without any prior suspicion of an offence. Consequently, such transmission was proportionate only if it served the protection of an important legal interest and if there was a sufficient factual basis for the suspicion that criminal offences were being planned or had been committed.
41. Section 3(5), first sentence, read in conjunction with section 3(3), did not fully comply with these requirements.
42. The catalogue of offences in respect of which the transmission of data was permitted also included less serious offences such as fraud relating to economic subsidies. Moreover, the impugned provision authorised the transmission of data in cases in which there were merely factual indications for the suspicion that one of the offences listed in that provision had been committed or was even only being planned. The transmission of data for the investigation of an offence which had already been committed should be authorised only if the factual basis for the transmission was the same as that required by section 100a of the Code of Criminal Procedure. Section 100a provided, however, that interferences with the secrecy of telecommunications in order to investigate crimes required the presence of specific facts – as opposed to mere factual indications – warranting the suspicion that the person concerned had committed an offence listed in that provision. As regards the transmission of data for the prevention of crime, the combination of the elements that mere factual indications were sufficient, that the mere planning of an offence could suffice and that transmission could also be justified in the case of less serious offences led to a disproportionate interference with the fundamental rights affected.
43. The Federal Constitutional Court further found that section 3(5), second sentence, was likewise not compatible with the right to secrecy of telecommunications. It considered it unnecessary to entrust the decision on transmission of data to an independent body. However, there was no requirement to record in minutes the transmission or the destruction or deletion of the data. This rendered effective supervision of the transmission of the data impossible.
44. The Federal Constitutional Court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(5), first sentence, could be applied provided that data were only transmitted if specific facts aroused the suspicion that offences listed in section 3(3) had been committed. Furthermore, the transmission had to be recorded in minutes.
(f) Section 3(6) and (7) and section 7(4) of the amended G 10 Act: Destruction of data
45. Section 3(6) and (7) and section 7(4) regulated the procedure for destruction of the data obtained by strategic monitoring.
46. Section 3(6) provided that if the data obtained in the circumstances set out in section 3(1) were no longer necessary to achieve the purposes listed in that provision and if they did not have to be transmitted to other authorities pursuant to section 3(5), they had to be destroyed and deleted from the files under the supervision of a staff member who was qualified to hold judicial office (first sentence). The destruction and deletion had to be recorded in minutes (second sentence). It was necessary to verify every six months whether the conditions for destruction or deletion were met (third sentence).
47. Section 3(7) provided that the recipient authorities likewise were to verify whether they needed the data transmitted to them in order to achieve the aims laid down in section 3(3) (first sentence). If this was not the case, they also had to destroy the data immediately (second sentence). The destruction could be dispensed with if separation of the data from other information which was necessary for the fulfilment of the tasks set was impossible or could only be carried out through unjustifiable effort; the use of such data was prohibited (third sentence).
48. Section 7(4), first sentence, provided that personal data obtained by means of monitoring measures pursuant to sections 2 and 3 about a person involved in the telecommunications monitored had to be destroyed if they were no longer necessary for the purposes listed in the Act and could no longer be of significance for an examination by the courts of the legality of the measure. The destruction had to be carried out under the supervision of a person qualified to hold judicial office. Pursuant to section 7(4), second sentence, the destruction had to be recorded in minutes. It was necessary to examine every six months whether personal data obtained could be destroyed (third sentence). Access to data which were merely kept for the purpose of judicial review of the monitoring measure had to be blocked (fourth sentence). They could only be used for that purpose (fifth sentence).
49. The Federal Constitutional Court found that the provisions on the destruction of data laid down in section 3(6) and (7), second and third sentences, and section 7(4) complied with Article 19 § 4 of the Basic Law. The provisions, however, had to be interpreted so as not to frustrate judicial review of monitoring measures. This meant that data could only be destroyed six months after the person concerned had been notified that monitoring measures had been taken.
50. However, the Federal Constitutional Court considered section 3(7) to be incompatible with Article 10 of the Basic Law. It was necessary for the recipient authorities to mark the data as having been obtained by means of the interception of telecommunications. Otherwise, following verification that the information obtained was relevant for the tasks of the authorities concerned, personal data could be saved in a manner which made it impossible to identify them as resulting from the strategic monitoring of telecommunications. The restrictions on the permitted use of these data pursuant to section 3(3) would thereby be undermined. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(7) could be applied provided that the data were marked as described.
(g) Section 3(8) of the amended G 10 Act: Notification of the persons concerned by the monitoring
51. Section 3(8), first sentence, provided that the Federal Intelligence Service or the recipient authorities had to inform the persons monitored about the restriction imposed on the secrecy of telecommunications as soon as such notification could occur without jeopardising the achievement of the aim pursued by the restriction and the use of the data. Pursuant to section 3(8), second sentence, no notification was given if the data obtained had been destroyed within three months after their receipt by the Federal Intelligence Service or the recipient authorities.
52. The Federal Constitutional Court considered the restriction on the duty of notification as such, as laid down in section 3(8), first sentence, to be compatible with the Basic Law. By virtue of Article 10 § 2, first and second sentences, taken in conjunction with Article 19 § 4, third sentence, of the Basic Law, no notification had to be given if this served to protect the German State or its democratic order or if disclosure of the information obtained or the methods used to this end threatened the fulfilment of the tasks of the authorities concerned.
53. However, section 3(8), second sentence, violated Article 10 and Article 19 § 4 of the Basic Law. There were no safeguards precluding the data from being used before their destruction within the three-month period. The mere destruction of the data within that period alone did not, however, justify dispensing with the duty of notification irrespective of the prior use of the data.
54. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(8) could be applied provided that the data had not been used before their destruction.
(h) Section 9(2) of the G 10 Act: Supervision of monitoring measures
55. Section 9(2) provided for supervision of the monitoring measures by an independent body, the so-called G 10 Commission.
56. Pursuant to section 9(2), first sentence, the competent Federal Minister was to inform the G 10 Commission on a monthly basis about the measures he had ordered to restrict the secrecy of telecommunications before such measures were implemented.
57. The Federal Minister could, however, order the execution of the measure before having informed the G 10 Commission if there was a risk that a delay might frustrate the purpose of the measure (second sentence of section 9(2)). The Commission gave a decision of its own motion or further to complaints contesting the legality and necessity of monitoring measures (third sentence). Monitoring orders which the Commission deemed illegal or unnecessary had to be immediately revoked by the Minister (fourth sentence).
58. The Federal Constitutional Court considered that section 9(2), in its present wording, was incompatible with Article 10 of the Basic Law. It failed to provide in a sufficiently clear manner that supervision by the G 10 Commission covered the whole process of obtaining and using the data (including measures taken under section 3(3), (5), (6) and (8)), and not only the monitoring orders by the competent Minister. The court ruled that, pending the entry into force of legislation in compliance with the Constitution, the provision in question was only to be applied if the Commission’s supervisory powers extended to measures taken under section 3(3), (5), (6) and (8).
(i) Section 9(6) of the amended G 10 Act: Exclusion of judicial review
59. Section 9(6) excluded the possibility of judicial review in the case of monitoring measures ordered and executed to prevent an armed attack on the territory of the Federal Republic of Germany within the meaning of section 3(1), second sentence, point 1.
60. Pursuant to section 5(5) of the G 10 Act, which remained unchanged in substance, the person concerned had to be notified of measures restricting the secrecy of telecommunications as soon as these measures were discontinued, provided that such notification did not jeopardise the purpose of the restriction (first and second sentence). After notification the person concerned could have recourse to the courts; section 9(6) did not apply (third sentence).
61. The Federal Constitutional Court found that section 9(6) constituted a justified restriction on the secrecy of telecommunications in accordance with Article 10 § 2, second sentence, of the Basic Law. Moreover, a person concerned by a monitoring measure could have recourse to the courts following notification of the restriction under section 5(5), third sentence, of the G 10 Act. The same applied if the person concerned had learned of the monitoring measure by another means, without having been notified.
4. The new G 10 Act
62. A new version of the G 10 Act, which takes into account the principles laid down by the Federal Constitutional Court in its judgment dated 14 July 1999, entered into force on 26 June 2001.
COMPLAINTS
63. The applicants claimed that certain provisions of the Fight against Crime Act amending the G 10 Act, in their versions as interpreted and modified by the Federal Constitutional Court in its judgment of 14 July 1999, violated their right to respect for their private life and their correspondence as protected by Article 8 of the Convention. They complained in particular about section 3(1), (3), (5), (6), (7) and (8) of the amended G 10 Act.
64. The first applicant further argued that the same provisions of the Fight against Crime Act infringed freedom of the press as guaranteed by Article 10 of the Convention.
65. The applicants also submitted that the destruction of data (section 3(6) and (7), read in conjunction with section 7(4)), the failure to give notice of restrictions on the secrecy of telecommunications (section 3(8)) and the exclusion of judicial review in certain cases (section 9(6)) in accordance with the Act breached Article 13 of the Convention.
THE LAW
A. The Government’s objections
1. The submissions of the parties
(a) The Government
66. The Government argued, firstly, that the application was incompatible ratione personae with the provisions of the Convention. Both applicants resided in Uruguay and claimed that their Convention rights had been infringed as regards telecommunications from their telephone connections in that country. The monitoring of telecommunications made from abroad, however, had to be qualified as an extraterritorial act. In accordance with the Court’s decision in the case of Bankovic and Others v. Belgium and Others ([GC], no. 52207/99, ECHR 2001-XII), the applicants therefore did not come within Germany’s jurisdiction within the meaning of Article 1 of the Convention – a concept which was primarily territorial – on account of that act.
67. Secondly, in the Government’s submission, the second applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. He had not sufficiently substantiated in his constitutional complaint his argument that his rights under the Basic Law were likely to be interfered with by measures taken on the basis of the impugned provisions of the amended G 10 Act. The Federal Constitutional Court had therefore dismissed his complaint as being inadmissible. Moreover, the first applicant had failed to exhaust domestic remedies in so far as she had complained that section 3(2), third sentence, of the amended G 10 Act violated her Convention rights. She had failed to show in her complaint to the Federal Constitutional Court that she was affected by the provision in question and to what extent.
68. Thirdly, in the Government’s view, the applicants could not claim to be victims of a violation of their Convention rights. They referred to their reasoning with regard to exhaustion of domestic remedies in that connection. Moreover, in so far as the Federal Constitutional Court had already declared the impugned provisions to be unconstitutional, the applicants could no longer claim to be victims of a violation of their Convention rights. In particular, they did not have a legitimate interest in obtaining a decision in so far as that court permitted the continued application of those provisions on a provisional basis.
(b) The applicants
69. The applicants contested those submissions. As to the applications’ compatibility ratione personae with the Convention, the first applicant argued that she came within German jurisdiction within the meaning of Article 1 of the Convention as she was a German national. Both applicants further argued that it could not be decisive that the impugned acts had taken effect abroad. Otherwise a respondent State could circumvent its obligations under the Convention.
70. The applicants submitted that they had exhausted domestic remedies as they had both obtained a judgment of the Federal Constitutional Court, delivered on 14 July 1999.
71. The applicants further argued that they had not lost their status as victims of violations of their Convention rights in so far as they had not been granted the redress sought in their constitutional complaints. They stressed that the powers of the Federal Intelligence Service had remained unchanged in the new version of the G 10 Act of 2001 in so far as the Federal Constitutional Court had not objected to them. It was in the nature of secret monitoring that they could not prove that they had actually been subjected to it. However, it was very likely that because of their activities, they had used catchwords within the meaning of section 3(2) of the G 10 Act, which had caused their communications to be recorded and analysed.
2. The Court’s assessment
72. The Court does not consider it necessary in the present case to rule on the objections made by the Government since, even assuming that the applications are compatible ratione personae with the Convention, that domestic remedies have been exhausted and that both applicants can claim to be victims of Convention violations, it considers that the applications are in any event inadmissible for the reasons set out below.
B. Complaints under Article 8 of the Convention
73. The applicants submitted that certain provisions of the Fight against Crime Act amending the G 10 Act, in their versions as interpreted and modified by the Federal Constitutional Court, violated their right to respect for their private life and their correspondence.
74. In particular, the applicants complained about five measures. Firstly, they complained about the process of strategic monitoring (section 3(1), taken in conjunction with section 1(1), point 2, of the G 10 Act). Secondly, they contested the transmission and use of personal data pursuant to section 3(3), second sentence, of the G 10 Act. Thirdly, they complained about the transmission of personal data to the Offices for the Protection of the Constitution and other authorities and its use by them pursuant to section 3(5) of the G 10 Act. Fourthly, they contested the destruction of personal data under section 3(6) and (7), taken in conjunction with section 7(4), of the G 10 Act. Fifthly, they contested the provision authorising the refusal to give notice of restrictions on the secrecy of telecommunications (section 3(8) of the G 10 Act).
75. The applicants invoked Article 8 of the Convention which, in so far as relevant, reads:
“1. Everyone has the right to respect for his private … life, … and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.”
1. Whether there was an interference
76. The Government conceded that the impugned provisions of the amended G 10 Act, in so far as they authorised the monitoring of telecommunications and the use of data obtained thereby, interfered with the secrecy of telecommunications as protected by Article 8. The applicants took the same view.
77. The Court reiterates that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 (see, inter alia, Klass and Others, cited above, p. 21, § 41; Malone v. the United Kingdom, judgment of 2 August 1984 Series A no. 82, pp. 30-31, § 64; and Lambert v. France, judgment of 24 August 1998, Reports of Judgments and Decisions 1998-V, pp. 2238-39, § 21).
78. The Court further notes that the applicants, even though they were members of a group of persons who were likely to be affected by measures of interception, were unable to demonstrate that the impugned measures had actually been applied to them. It reiterates, however, its findings in comparable cases to the effect that 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. This threat necessarily strikes at freedom of communication between users of the telecommunications services and thereby amounts in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them (see Klass and Others, cited above, p. 21, § 41, and Malone, cited above, pp. 30-31, § 64).
79. Consequently, the impugned provisions of the amended G 10 Act, in so far as they authorise the interception of telecommunications, interfere with the applicants’ right to respect for private life and correspondence. Furthermore, the Court, like the Federal Constitutional Court, takes the view that the transmission of data to and their use by other authorities, which enlarges the group of persons with knowledge of the personal data intercepted and can lead to investigations being instituted against the persons concerned, constitutes a further separate interference with the applicants’ rights under Article 8 (see, mutatis mutandis, Leander v. Sweden, judgment of 26 March 1987, Series A no. 116, p. 22, § 48; Amann v. Switzerland [GC], no. 27798/95, § 70, ECHR 2000-II; and Rotaru v. Romania [GC], no. 28341/95, § 46, ECHR 2000-V). Moreover, the impugned provisions interfere with these rights in so far as they provide for the destruction of the data obtained and for the refusal to notify the persons concerned of surveillance measures taken in that this may serve to conceal monitoring measures interfering with the applicants’ rights under Article 8 which have been carried out by the authorities.
2. Whether the interference was justified
80. Such interferences are justified by the terms of paragraph 2 of Article 8 if they are “in accordance with the law”, pursue one or more of the legitimate aims referred to in paragraph 2 and, furthermore, are “necessary in a democratic society” in order to achieve them.
(a) Were the interferences “in accordance with the law”?
81. The Government took the view that the interferences were in accordance with the law. On the one hand, they were not contrary to public international law because the monitoring of wireless telecommunications did not interfere with the territorial sovereignty of foreign States. In any event, the first applicant could not rely on an alleged violation of a State’s territorial sovereignty in the context of an individual application to the Court. On the other hand, the interferences in question were based on the amended provisions of the G 10 Act and, in so far as the Federal Constitutional Court had declared some of the impugned provisions to be unconstitutional, on that court’s rulings concerning the manner in which these provisions were to be applied during a transitional period. In particular, section 3(5), as confirmed by the Federal Constitutional Court, constituted a sufficient legal basis for the transmission of data by the Federal Intelligence Service to other authorities.
82. The Government further submitted that the circumstances in which telecommunications could be monitored and the data thus obtained be used were set out in a precise manner in the amended provisions of the G 10 Act and in the Constitutional Court’s judgment. There were, in particular, sufficient procedural safeguards against abuse of powers of surveillance.
83. The applicant argued that the interception of telecommunications interfered illegally with the sovereignty of the foreign States in which the persons being monitored resided. Moreover, section 3(5) of the amended G 10 Act provided no valid legal basis for the transmission of information obtained by means of the interception of telecommunications to the Offices for the Protection of the Constitution of the Federation and of the Länder and to the Military Counter-Intelligence Service. Contrary to the Federal Constitutional Court’s view, Article 73, point 1, of the Basic Law did not authorise the federal legislature to enact such a regulation.
84. The Court reiterates that the expression “in accordance with the law” within the meaning of Article 8 § 2 requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27; Huvig v. France, judgment of 24 April 1990, Series A no. 176-B, p. 52, § 26; Lambert, cited above, p. 2239, § 23; and Perry v. the United Kingdom, no. 63737/00, § 45, ECHR 2003-IX).
i. Whether there was a statutory basis in German law
85. The Court notes at the outset that in the present case, the interference with the applicants’ right to respect for their private life and correspondence resulted from provisions of the amended G 10 Act, an Act passed by Parliament and applicable in the manner set out by the Federal Constitutional Court in its judgment of 14 July 1999.
86. The Court further observes that the applicants considered the impugned provisions of the amended G 10 Act not to constitute a valid statutory basis, in the first place because the interception of telecommunications interfered illegally with the sovereignty of the foreign States in which the persons monitored resided.
87. The Court reiterates that the term “law” within the meaning of the Convention refers back to national law, including rules of public international law applicable in the State concerned (see, mutatis mutandis, Groppera Radio AG and Others v. Switzerland, judgment of 28 March 1990, Series A no. 173, p. 26, § 68; Autronic AG v. Switzerland, judgment of 22 May 1990, Series A no. 178, p. 25, § 56; Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, p. 19, § 54; and Öcalan v. Turkey [GC], no. 46221/99, § 90, ECHR 2005-IV). As regards allegations that a respondent State has violated international law by breaching the territorial sovereignty of a foreign State, the Court requires proof in the form of concordant inferences that the authorities of the respondent State have acted extraterritorially in a manner that is inconsistent with the sovereignty of the foreign State and therefore contrary to international law (see, in particular, Öcalan, cited above, § 90).
88. The Court observes that the impugned provisions of the amended G 10 Act authorise the monitoring of international wireless telecommunications, that is, telecommunications which are not effected via fixed telephone lines but, for example, via satellite or radio relay links, and the use of data thus obtained. Signals emitted from foreign countries are monitored by interception sites situated on German soil and the data collected are used in Germany. In the light of this, the Court finds that the applicants failed to provide proof in the form of concordant inferences that the German authorities, by enacting and applying strategic monitoring measures, have acted in a manner which interfered with the territorial sovereignty of foreign States as protected in public international law.
89. The Court further observes that the applicants disputed, secondly, that section 3(5) of the amended G 10 Act provided a valid legal basis for the transmission of information. They argued that the federal legislature had not been authorised vis-à-vis the Länder legislatures, by the relevant provisions on legislative powers laid down in the Basic Law, in particular Article 73, to adopt such a provision. They were, therefore, claiming in substance that the impugned provision of the amended G 10 Act failed to comply with domestic law of a higher rank, namely the provisions on legislative powers laid down in the German Constitution.
90. The Court reiterates in this connection that, whilst it is true that no interference can be considered to be “in accordance with law” unless the decision – or statutory provision – occasioning it complied with the relevant domestic law – of a higher rank – the logic of the system of safeguards established by the Convention sets limits on the scope of the power of review exercisable by the Court in this respect. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law: the national authorities are, in the nature of things, particularly qualified to settle the issues arising in this connection (see, mutatis mutandis, Kruslin, cited above, p. 21, § 29, and Barthold v. Germany, judgment of 25 March 1985, Series A no. 90, pp. 22-23, § 48). In a sphere covered by written law, the “law” is therefore the enactment in force as the competent courts have interpreted it in the light, if necessary, of any new practical developments, and the Court cannot question the national courts’ interpretation except in the event of flagrant non-observance of, or arbitrariness in the application of, the domestic legislation in question (see, inter alia, Kruslin, cited above, p. 21, § 29; Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002-III; and, mutatis mutandis, Lavents v. Latvia, no. 58442/00, § 114, 28 November 2002; and Leyla Sahin v. Turkey [GC], no. 44774/98, § 88, ECHR 2005-…).
91. The Court notes that the Federal Constitutional Court, in its judgment in the present case, found that the exclusive legislative power vested in the federal legislature in the sphere of foreign affairs pursuant to Article 73, point 1, of the Basic Law also authorised it to legislate in the matters laid down in section 3(5) of the amended G 10 Act. The Court considers that the national courts’ interpretation to the effect that the transmission to other authorities of information obtained by the Federal Intelligence Service in the performance of its tasks was covered by the federal legislature’s powers in the sphere of foreign affairs does not disclose any flagrant non-observance of the Basic Law or arbitrariness in its application. It is accordingly satisfied that there was a sufficient legal basis for the impugned measure.
ii. Quality of the law
92. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case.
93. As to the third requirement, the law’s foreseeability, the Court reiterates that foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander, cited above, p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru, cited above, § 55). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924 25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).
94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29).
95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).
96. Turning to the present case, the Court observes that section 3(1) of the amended G 10 Act, as interpreted by the Federal Constitutional Court, enumerated in its second sentence, points 1-6, the exact offences for the prevention of which the strategic interception of telecommunications could be ordered. The amended G 10 Act therefore defined in a clear and precise manner the offences which could give rise to an interception order.
97. The Court further observes that the conditions for strategic monitoring, as laid down in section 3(1) and (2) of the amended G 10 Act, in particular, indicated which categories of persons were liable to have their telephone tapped: the persons concerned had to have taken part in an international telephone conversation via satellite connections or radio relay links (or also via fixed telephone lines in the case of monitoring to avert an armed attack on Germany, in accordance with section 3(1), point 1). In addition, the persons concerned either had to have used catchwords capable of triggering an investigation into the dangers listed in section 3(1), points 1-6, or had be foreign nationals or companies whose telephone connections could be monitored deliberately in order to avoid such dangers (section 3(2)).
98. As to the limit on the duration of telephone tapping, the Court notes that pursuant to section 5 of the G 10 Act (which was not amended by the 1994 Fight against Crime Act), the maximum duration of monitoring measures to be fixed in the order was three months; the implementation of the measure could be prolonged for a maximum of three months at a time as long as the statutory conditions for the order were met.
99. Moreover, the procedure to be followed for examining and using the data obtained was regulated in detail in section 3(3)-(5) of the amended G 10 Act. In particular, section 3(3) and (5) laid down limits and precautions concerning the transmission of data to other authorities; these were further strengthened by the Federal Constitutional Court in its judgment in the instant case.
100. As to the circumstances in which recordings may or must be erased or tapes destroyed, the Court observes that section 3 (6) and (7) and section 7(4) of the amended G 10 Act set out in detail the procedure for the destruction of data obtained by means of strategic monitoring. The authorities storing the data had to verify every six months whether those data were still necessary to achieve the purposes for which they had been obtained by or transmitted to them. If that was not the case, they had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked; the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and section 7(4), had to be supervised by a staff member qualified to hold judicial office.
101. Having regard to the foregoing, the Court concludes that the impugned provisions of the G 10 Act, seen in their legislative context, contained the minimum safeguards against arbitrary interference as defined in the Court’s case-law and therefore gave citizens an adequate indication as to the circumstances in which and the conditions on which the public authorities were empowered to resort to monitoring measures, and the scope and manner of exercise of the authorities’ discretion.
102. Therefore, the interferences with the applicants’ right to respect for private life and correspondence as a result of the impugned provisions of the amended G 10 Act were “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.
(b) Purpose and necessity of the interferences
103. The Government argued that the impugned interferences with the secrecy of telecommunications for the various purposes listed in section 3(1), second sentence, points 1-6, pursued a legitimate aim. They were necessary, in particular, in the interests of national security, public safety, the economic well-being of the country, and of the prevention of crime. The applicants did not comment on this issue.
104. The Court shares the Government’s view that the aim of the impugned provisions of the amended G 10 Act was indeed to safeguard national security and/or to prevent crime, which are legitimate aims within the meaning of Article 8 § 2. It does not, therefore, deem it necessary to decide whether the further purposes cited by the Government were also relevant.
105. It remains to be ascertained whether the impugned interferences were “necessary in a democratic society” in order to achieve these aims.
106. The Court reiterates that when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, it has consistently recognised that the national authorities enjoy a fairly wide margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security (see, inter alia, Klass and Others, cited above, p. 23, § 49; Leander, cited above, p. 25, § 59; and Malone, cited above, pp. 36-37, § 81). Nevertheless, in view of the risk that a system of secret surveillance for the protection of national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse (see Klass and Others, cited above, pp. 23-24, §§ 49-50; Leander, cited above, p. 25, § 60; Camenzind v. Switzerland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2893-94, § 45; and Lambert, cited above, p. 2240, § 31). 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 authorise, carry out and supervise them, and the kind of remedy provided by the national law (see Klass and Others, cited above, pp. 23-24, § 50).
107. The Court, while not losing sight of the legislative context, will first examine whether the interferences in question were proportionate to the legitimate aim pursued by each of the impugned provisions in turn, and will then make an overall assessment.
i. Strategic monitoring pursuant to section 3(1), taken in conjunction with section 1(1), point 2, of the amended G 10 Act (as modified by the Fight against Crime Act of 28 October 1994)
108. In the Government’s submission, the impugned provision was necessary in a democratic society. It struck a proper balance between the public interest in averting the serious dangers listed in points 1-6 of section 3(1) and the interests of the persons concerned by the monitoring measures.
109. According to the Government, monitoring measures based on the G 10 Act had notably been necessary to combat international terrorism (point 2), by which democratic societies found themselves increasingly threatened, for instance by uncovering the command structure of Al-Qaida following the terrorist attacks of 11 September 2001. As regards international arms trafficking (point 3), it had, for example, been possible to prevent the export of dual-use goods into countries subject to an embargo and to improve export control with the help of strategic monitoring. It was impossible to counter these threats without resorting to strategic monitoring of telecommunications.
110. The Government argued that the way in which monitoring measures were taken and their extent were likewise not excessive. At the relevant time, merely some ten per cent of all telecommunications had been conducted by wireless means and had therefore been potentially subject to monitoring. In practice, monitoring was restricted to a limited number of foreign countries. By virtue of section 3(2), third sentence, the telephone connections of German nationals living abroad could not be monitored directly. The identity of persons telecommunicating could only be uncovered in rare cases in which a catchword had been used.
111. The applicant submitted that the scope of automatic surveillance under section 3(1) of the amended G 10 Act was far too wide, as there were no longer any geographical restrictions and as it was possible to identify persons and, if they were using mobile telephones, to analyse their movements. By virtue of section 3(2) of the amended G 10 Act, the second applicant could even be monitored deliberately. The Federal Intelligence Service was entitled to monitor all telecommunications within its reach without any reason or previous suspicion. Its monitoring powers therefore inhibited open communication and struck at the roots of democratic society. It was irrelevant whether or not it was already possible from a technical point of view to carry out worldwide monitoring.
112. In the applicant’s view, these wide monitoring powers did not correspond to a pressing need on the part of society for such surveillance. There was no longer a threat of an armed attack on the Federal Republic of Germany by a foreign State possessing nuclear weapons, as there had been during the “Cold War”. Nor was there any other comparable current danger to be averted. In particular, drug trafficking, counterfeiting of money and money laundering or presumed dangers arising from organised crime did not constitute a danger to public safety sufficient to justify such an intensive interference with the telecommunications of individuals. The fact that interception was limited to content of “relevance for the intelligence service” (“nachrichtendienstliche Relevanz”), as a result of the decision of the Federal Constitutional Court, was not sufficient to constrain effectively the monitoring powers of the Federal Intelligence Service.
113. Moreover, the duty to have the interception of telecommunications authorised by the highest authorities of the Länder or a Minister of the Federal Government and the prior supervision of monitoring measures by an independent parliamentary committee did not avert the danger of abuse. It was likely that the interferences in question had been ordered in a result oriented manner, notably because the excessive use of such measures, which, as a rule, remained secret, was unlikely to entail legal or political sanctions.
114. The Court is aware that the 1994 amendments to the G 10 Act considerably extended the range of subjects in respect of which so-called strategic monitoring could be carried out under section 3(1), the central provision at issue here. Whereas initially such monitoring was permitted only in order to detect and avert the danger of an armed attack on Germany, section 3(1) now also allowed strategic monitoring in order to avert further serious offences listed in points 2-6 of that section. Moreover, technical progress now made it possible to identify the telephone connections involved in intercepted communications.
115. While the range of subjects in the amended G 10 Act is very broadly defined, the Court observes that – just as under the G 10 Act in its initial version, which was at issue in its Klass and Others judgment – a series of restrictive conditions had to be satisfied before a measure entailing strategic monitoring could be imposed. It was merely in respect of certain serious criminal acts – which reflect threats with which society is confronted nowadays and which were listed in detail in the impugned section 3(1) – that permission for strategic monitoring could be sought. As regards the monitoring of telecommunications in order to avoid the counterfeiting of money abroad, the Federal Constitutional Court raised the threshold for interception by finding that such an offence could be serious enough to justify monitoring only if it was capable of threatening monetary stability in Germany. Surveillance could be ordered only on a reasoned application by the President of the Federal Intelligence Service or his deputy and if the establishment of the facts by another method had no prospect of success or was considerably more difficult. The decision to monitor had to be taken by the Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the highest authority of the Länder with the authorisation of the Parliamentary Supervisory Board. The Minister further had to obtain prior authorisation from the G 10 Commission or, in urgent cases, ex post facto approval. Consequently, under the amended G 10 Act there was an administrative procedure designed to ensure that measures were not ordered haphazardly, irregularly or without due and proper consideration.
116. Moreover, the Court notes, with regard to the implementation of surveillance measures and the processing of the data obtained, that safeguards against abuse were spelled out in detail. Monitoring measures remained in force for a fairly short maximum period of three months and could be renewed only on a fresh application and if the statutory conditions for the order were still met. Monitoring had to be discontinued immediately once the conditions set out in the monitoring order were no longer fulfilled or the measures themselves were no longer necessary. As regards the examination of personal data obtained by the Federal Intelligence Service, the Federal Constitutional Court strengthened the existing safeguards by ordering that such data had to be marked as stemming from strategic monitoring and were not to be used for ends other than those listed in section 3(1). The transmission of data to the Federal Government and to other authorities under section 3(3) and (5) was also subject to conditions (which will be examined in more detail below). Moreover, the G 10 Act contained strict provisions concerning the storage and destruction of data. The responsibility for reviewing stored files on a six-month basis was entrusted to an official qualified to hold judicial office. Data had to be destroyed as soon as they were no longer needed to achieve the purpose pursued (see in more detail below, paragraphs 130-132).
117. As regards supervision and review of monitoring measures, the Court notes that the G 10 Act provided for independent supervision by two bodies which had a comparatively significant role to play. Firstly, there was a Parliamentary Supervisory Board, which consisted of nine members of parliament, including members of the opposition. The Federal Minister authorising monitoring measures had to report to this board at least every six months. Secondly, the Act established the G 10 Commission, which had to authorise surveillance measures and had substantial power in relation to all stages of interception. The Court observes that in its judgment in the Klass and Others case (cited above, pp. 24-28, §§ 53-60) it found this system of supervision, which remained essentially the same under the amended G 10 Act at issue here, to be such as to keep the interference resulting from the contested legislation to what was “necessary in a democratic society”. It sees no reason to reach a different conclusion in the present case.
118. Consequently, strategic monitoring under section 3(1) was embedded into a legislative context providing considerable safeguards against abuse.
ii. Transmission and use of personal data pursuant to section 3(3), second sentence, of the G 10 Act, taken in conjunction with section 12 of the Federal Intelligence Service Act
119. The Government submitted that in a democratic society it was necessary for the Federal Intelligence Service to report to the Federal Government on the results of its monitoring measures in accordance with section 3(3), second sentence, of the amended G 10 Act, taken in conjunction with section 12 of the Federal Intelligence Service Act. This included the transmission of personal data which had to be marked as deriving from such measures. Otherwise, the Government would not be in a position to take effective measures to avert the dangers listed in section 3(1).
120. The applicants argued that there was no reason for the Federal Government to receive non-anonymous personal data obtained by the Federal Intelligence Service by means of the interception of telecommunications. The criminal prosecution of individuals was the task of the judiciary alone, and the transmission of such personal data could be abused for political aims.
121. The Court notes at the outset that in its judgment the Federal Constitutional Court found that the impugned provisions did not contain sufficient safeguards to ensure that the duty of the Federal Intelligence Service to report to the Federal Government, which included the transmission of personal data, was performed only for the purposes which had justified the collection of the data. That court ruled that, pending the entry into force of legislation in compliance with the Constitution, section 3(3), second sentence, could only be applied if the personal data contained in the report to the Federal Government were marked and remained connected to the purposes which had justified their collection.
122. The Court finds that the impugned provision, as amended and applicable following the judgment of the Federal Constitutional Court, laid down strict conditions with regard to the transmission to the Federal Government of data obtained by means of strategic monitoring. It is further convinced by the Government’s argument that, in order effectively to avert the dangers listed in section 3(1), the transmission of personal – as opposed to anonymous – data might prove necessary. The additional safeguards introduced by the Federal Constitutional Court are appropriate for the purpose of limiting the use of the information obtained to what is necessary to serve the purpose of strategic monitoring.
iii. Transmission of personal data to the Offices for the Protection of the Constitution and other authorities and their use by these authorities in accordance with section 3(5) of the G 10 Act
123. In the Government’s view, the transmission of the data in question was necessary in a democratic society for the prevention and prosecution of crime. It was a suitable means of achieving this aim, as it was the task of the recipient authorities to avert and investigate criminal offences. Taking into account the stipulations of the Federal Constitutional Court (in particular to the effect that transmission of data was permitted only if specific facts – as opposed to mere factual indications – had aroused the suspicion that one of the offences listed in section 3(3) was being planned or had been committed), the powers to transmit data were also not unreasonably wide. Moreover, there were sufficient procedural safeguards to guarantee that these requirements were complied with. The decision to transmit data was taken by a staff member qualified to hold judicial office and was reviewed by the G 10 Commission.
124. The applicants submitted that the transmission of personal data to, among other authorities, the Offices for the Protection of the Constitution was a further interference with their rights, which was not necessary in a democratic society. Despite the restrictions ordered by the Federal Constitutional Court, the scope of the cases in which the transmission of data was permitted remained wide and indeterminate. It was disproportionate to use information obtained by means of a serious interference with the secrecy of communications to combat a multitude of offences – some of which were rather petty – even if they were only in the planning stage. The obvious danger of abuse was not counterbalanced by sufficient procedural safeguards. Even though the decision to transmit data was taken by an official who was qualified to hold judicial office, there was no independent scrutiny, as the official in question was a staff member of the Federal Intelligence Service.
125. The Court finds that the transmission of personal data obtained by general surveillance measures without any specific prior suspicion in order to allow the institution of criminal proceedings against those being monitored constitutes a fairly serious interference with the right of these persons to secrecy of telecommunications. It observes in this connection that the catalogue of offences for the investigation of which knowledge obtained by means of strategic monitoring could be used was considerably enlarged by the amendment of the G 10 Act at issue.
126. However, it notes that the use of information obtained by strategic monitoring to these ends was limited: personal data could be transmitted to other authorities merely in order to prevent or prosecute the serious criminal offences listed in section 3(3) of the amended G 10 Act.
127. Moreover, the Court observes that the Federal Constitutional Court found that the impugned section, in its version in force at the relevant time, interfered disproportionately with the secrecy of telecommunications as protected by the Basic Law. That court therefore ordered that, pending the entry into force of legislation in compliance with the Constitution, section 3(5) could only be applied and data be transmitted if specific facts – as opposed to mere factual indications – aroused the suspicion that someone had committed one of the offences listed in section 3(3). Furthermore, the transmission had to be recorded in minutes. Accordingly, that court again considerably strengthened the safeguards against abuse.
128. In addition, the decision to transmit data had to be taken by a staff member of the Federal Intelligence Service qualified to hold judicial office, who was particularly well trained to verifywhether the conditions for transmission were met. Moreover, as clarified in the Federal Constitutional Court’s judgment, the independent G 10 Commission’s powers of review extended to verifyingthat the statutory conditions for data transmission were complied with.
129. In the light of the above, the Court takes the view that the interference with the secrecy of the communications made by persons subject to monitoring in accordance with the impugned provision was counterbalanced both by a reasonable limitation of the offences for which data transmission was permitted and by the provision of supervisory mechanisms against abuse.
iv. Destruction of personal data pursuant to section 3(6) and (7), taken in conjunction with section 7(4), of the G 10 Act
130. The Government took the view that the destruction of data was necessary in a democratic society because it limited interference with the secrecy of telecommunications to what was strictly required. Furthermore, pursuant to the order of the Federal Constitutional Court, data which were still needed for the purposes of court proceedings could not be destroyed immediately.
131. The applicants argued that destruction of data obtained by means of the interception of telecommunications likewise infringed their right to respect for their private life. Leaving the responsibility for the retention and destruction of files to the authorities involved entailed a great danger of abuse. The persons concerned by strategic monitoring were entitled to be informed about the destruction of personal data concerning them.
132. The Court notes in the first place that the impugned provisions, in providing for the destruction of personal data as soon as they were no longer needed to achieve their statutory purpose, and for the verification at regular, fairly short intervals of whether the conditions for such destruction were met, constituted an important element in reducing the effects of the interference with the secrecy of telecommunications to an unavoidable minimum. Moreover, the Federal Constitutional Court ruled that data which were still needed for the purposes of court proceedings could not be destroyed immediately and that the supervisory powers of the independent G 10 Commission covered the whole process of using data, including their destruction. The impugned provisions consequently established further safeguards against abuse of the State’s powers of surveillance.
v. Failure to give notice of restrictions on the secrecy of telecommunications pursuant to section 3(8) of the G 10 Act
133. In the Government’s view, the provisions on notification were compatible with Article 8. As the purposes of strategic monitoring in accordance with section 3(1) would often be undermined if the persons concerned were subsequently informed about the measure, it was justified in such cases not to give any notification.
134. In the applicant’s submission, the impugned section provided that notification had to take place only if it did not endanger the aim pursued by the restriction and the use of the data thus obtained. This exclusion of notification was too broad and entitled the authorities concerned not to give notification in order to avert dangers which were most unlikely to materialise.
135. The Court reiterates that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Klass and Others, cited above, pp. 26-27, § 57). However, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance has ceased cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society”, as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. Indeed, such notification might reveal the working methods and fields of operation of the Intelligence Service (see Klass and Others, cited above, p. 27, § 58, and, mutatis mutandis, Leander, cited above, p. 27, § 66). As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned (see, mutatis mutandis, Leander, cited above, p. 27, § 66, and Klass and Others, cited above, p. 27, § 58).
136. The Court notes that pursuant to section 3(8), any individuals monitored were to be informed that their telecommunications had been intercepted as soon as notification could be carried out without jeopardising the purpose of monitoring. Moreover, the Court observes that the Federal Constitutional Court again strengthened the safeguards against abuse contained in the impugned provision by preventing the duty of notification from being circumvented; it found that in cases in which data were destroyed within three months there was justification for never notifying the persons concerned only if the data had not been used before their destruction. The Constitutional Court also clarified that the supervisory powers of the independent G 10 Commission extended to measures taken on the basis of section 3(8). In particular, the G 10 Commission had the power to decide whether an individual being monitored had to be notified of a surveillance measure (section 9(3) of the amended G 10 Act). The Court finds that the provision in question, as interpreted by the Federal Constitutional Court, therefore effectively ensured that the persons monitored were notified in cases where notification could be carried out without jeopardising the purpose of the restriction of the secrecy of telecommunications. It therefore contributed to keeping the interference with the secrecy of telecommunications resulting from the amended G 10 Act within the limits of what was necessary to achieve the legitimate aims pursued.
vi. Conclusion
137. In the light of the above considerations, the Court, having regard to all the impugned provisions of the amended G 10 Act in their legislative context, finds that there existed adequate and effective guarantees against abuses of the State’s strategic monitoring powers. It is therefore satisfied that the respondent State, within its fairly wide margin of appreciation in that sphere, was entitled to consider the interferences with the secrecy of telecommunications resulting from the impugned provisions to have been necessary in a democratic society in the interests of national security and for the prevention of crime.
138. Accordingly, the applicants’ complaints under Article 8 must be dismissed as being manifestly ill-founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
C. Complaints under Article 10 of the Convention
139. In the first applicant’s submission, certain provisions of the Fight against Crime Act, as interpreted and modified by the Federal Constitutional Court, amounted to a violation of freedom of the press. She complained about the same provisions of the Act as under Article 8 of the Convention (see above, paragraph 74). She relied on Article 10 of the Convention, which, in so far as relevant, reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. …
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
1. The parties’ submissions
(a) The Government
140. In the Government’s view, the impugned provisions of the amended G 10 Act did not interfere with the first applicant’s freedom of expression. Strategic monitoring measures were not aimed at restricting the expression of opinions or the receipt of information, which would in fact have contravened the purposes of the surveillance. The secrecy of communications was protected by Article 8 alone.
141. The Government further argued that, even assuming that there had been an interference with the rights protected under Article 10, the interference had been justified within the meaning of paragraph 2 of that Article. It had been prescribed by law and was necessary in a democratic society. The Government referred to their submissions regarding Article 8 in that connection.
(b) The first applicant
142. The first applicant submitted, in particular, that the impugned monitoring powers under section 3(1) of the amended G 10 Act prejudiced the work of journalists investigating issues targeted by surveillance measures. She could no longer guarantee that information she received in the course of her journalistic activities remained confidential. Section 3(1) of the amended G 10 Act did not sufficiently protect journalists’ communications and therefore disregarded the importance of a free press in a democratic society.
2. The Court’s assessment
(a) Whether there was an interference
143. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards to be afforded to the press are of particular importance. The protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information be adversely affected (see, inter alia, Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39, and Roemen and Schmit v. Luxembourg, no. 51772/99, § 46, ECHR 2003-IV).
144. The Court further refers to its above findings under Article 8 to the effect that legislation permitting a system for effecting secret surveillance of communications involves a threat of surveillance in respect of persons such as the first applicant, who sufficiently substantiated her argument that that legislation could be applied to her. This threat necessarily strikes at the freedom of communication between users of telecommunications services and therefore amounts in itself to an interference with the exercise of the applicant’s rights under Article 8, irrespective of any measures actually taken against her.
145. In the Court’s view, this finding must be applied, mutatis mutandis, to the first applicant’s right, in her capacity as a journalist, to freedom of expression as guaranteed by Article 10 § 1. The applicant communicated with persons she wished to interview on subjects such as drugs and arms trafficking or preparations for war, which were also the focus of strategic monitoring. Consequently, there was a danger that her telecommunications for journalistic purposes might be monitored and that her journalistic sources might be either disclosed or deterred from calling or providing information by telephone. For similar reasons to those set out in respect of Article 8, the transmission of data to other authorities, their destruction and the failure to notify the first applicant of surveillance measures could serve further to impair the confidentiality and protection of information given to her by her sources.
146. The Court therefore accepts that the impugned provisions interfered with the first applicant’s freedom of expression.
(b) Whether the interference was justified
147. The Court, for the reasons set out in connection with Article 8, finds that the interference with the applicant’s right to freedom of expression was prescribed by law, since it resulted from the impugned provisions of the amended G 10 Act, an Act passed by Parliament and applicable in the manner set out by the Federal Constitutional Court in its judgment of 14 July 1999.
148. The Court also finds that the interference pursued a legitimate aim, namely, the protection of the interests of national security and/or the prevention of crime.
149. In examining whether the interference was “necessary in a democratic society”, the Court reiterates that, having regard to the importance of the protection of journalistic sources for the freedom of the press in a democratic society, an interference cannot be compatible with Article 10 of the Convention unless it is justified by an overriding requirement in the public interest. In reviewing the decisions taken – or provisions enacted – by national authorities exercising their power of appreciation, the Court must look at the “interference” complained of in the light of the case as a whole and determine whether it was proportionate to the legitimate aim pursued and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient” (see, inter alia, Goodwin, cited above, pp. 500-01, §§ 39-40, and Roemen and Schmit, cited above, § 46).
150. The Court notes at the outset that the Federal Constitutional Court found that the two impugned provisions concerning transmission to other authorities of data obtained by means of strategic monitoring, namely section 3(3) and (5), infringed the freedom of the press as protected by Article 5 § 1, second sentence, of the Basic Law. In order to ensure that data were used only for the purpose which had justified their collection, it ordered, in particular, that section 3(3) could be applied only if the personal data transmitted to the Federal Government were marked and remained connected to the purposes which had justified their collection. As regards the transmission of data to the authorities listed in section 3(5), the court laid down stricter conditions for transmission by ordering that there had to be specific facts arousing a suspicion that someone had committed one of the offences listed in section 3(3) and that the transmission had to be recorded in minutes. It stressed that such safeguards could also ensure that the Federal Intelligence Service took into account the important concerns of non-disclosure of sources and confidentiality of editorial work protected by the freedom of the press enshrined in Article 5 § 1 of the Basic Law.
151. The Court observes that in the instant case, strategic monitoring was carried out in order to prevent the offences listed in section 3(1). It was therefore not aimed at monitoring journalists; generally the authorities would know only when examining the intercepted telecommunications, if at all, that a journalist’s conversation had been monitored. Surveillance measures were, in particular, not directed at uncovering journalistic sources. The interference with freedom of expression by means of strategic monitoring cannot, therefore, be characterised as particularly serious.
152. It is true that the impugned provisions of the amended G 10 Act did not contain special rules safeguarding the protection of freedom of the press and, in particular, the non-disclosure of sources, once the authorities had become aware that they had intercepted a journalist’s conversation. However, the Court, having regard to its findings under Article 8, observes that the impugned provisions contained numerous safeguards to keep the interference with the secrecy of telecommunications – and therefore with the freedom of the press – within the limits of what was necessary to achieve the legitimate aims pursued. In particular, the safeguards which ensured that data obtained were used only to prevent certain serious criminal offences must also be considered adequate and effective for keeping the disclosure of journalistic sources to an unavoidable minimum. In these circumstances the Court concludes that the respondent State adduced relevant and sufficient reasons to justify interference with freedom of expression as a result of the impugned provisions by reference to the legitimate interests of national security and the prevention of crime. Having regard to its margin of appreciation, the respondent State was entitled to consider these requirements to override the right to freedom of expression.
153. The Court concludes that the first applicant’s complaints under Article 10 of the Convention must be dismissed as being manifestly ill founded, in accordance with Article 35 §§ 3 and 4 of the Convention.
D. Complaints under Article 13 of the Convention
154. In the applicants’ view, certain provisions of the Fight against Crime Act amending the G 10 Act, as interpreted and modified by the Federal Constitutional Court, violated their right to an effective remedy. They complained, in particular, about the destruction of personal data (section 3(6) and (7), taken in conjunction with section 7(4), of the G 10 Act), the failure to receive notice of restrictions on the secrecy of telecommunications (section 3(8) of the G 10 Act), and the exclusion of judicial review of monitoring measures (section 9(6), taken in conjunction with section 3(1)). They submitted that these measures prevented them from lodging an effective complaint with the national courts about violations of their rights under Articles 8 and 10 of the Convention. They relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
155. According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; Voyager Limited v. Turkey (dec.), no. 35045/97, 4 September 2001; Ivison v. the United Kingdom (dec.), no. 39030/97, 16 April 2002; and Petersen v. Germany (dec.), nos. 38282/97 and 68891/01, 12 January 2006).
156. The Court has found that the substantive complaints under Articles 8 and 10 of the Convention are manifestly ill-founded. For similar reasons, the applicants did not have an “arguable claim” for the purposes of Article 13, which is therefore not applicable to their case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court by a majority
Declares the application inadmissible.
Vincent Berger Boštjan M. Zupancic
Registrar President
S. AND MARPER v. THE UNITED KINGDOM
– 30562/04 [2008] ECHR 1581 25 BHRC 557, [2009] Crim LR 355, 48 EHRR 50, (2009) 48 EHRR 50
This judgment is final but may be subject to editorial revision.
In the case of S. and Marper v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Jean-Paul Costa, President,
Christos Rozakis,
Nicolas Bratza,
Peer Lorenzen,
Françoise Tulkens,
Josep Casadevall,
Giovanni Bonello,
Corneliu Bîrsan,
Nina Vajic, SIZE=3>
Anatoly Kovler,
Stanislav Pavlovschi,
Egbert Myjer,
Danute Jociene,
Ján Šikuta,
Mark Villiger, SIZE=3>
Päivi Hirvelä,
Ledi Bianku, judges,
and Michael O’Boyle, Deputy Registrar,
Having deliberated in private on 27 February 2008 and on 12 November 2008,
Delivers the following judgment, which was adopted on the last mentioned date:
PROCEDURE
The case originated in two applications (nos. 30562/04 and 30566/04) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two British nationals, Mr S. (“the first applicant”) and Mr Michael Marper (“the second applicant”), on 16 August 2004. The President of the Grand Chamber acceded to the first applicant’s request not to have his name disclosed (Rule 47 § 3 of the Rules of Court).
The applicants, who were granted legal aid, were represented by Mr P. Mahy of Messrs Howells, a solicitor practicing in Sheffield. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Foreign and Commonwealth Office.
The applicants complained under Articles 8 and 14 that the authorities had continued to retain their fingerprints and cellular samples and DNA profiles after the criminal proceedings against them had ended with an acquittal or had been discontinued.
The applications were allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 16 January 2007 they were declared admissible by a Chamber of that Section composed of the following judges: Josep Casadevall, President, Nicolas Bratza, Giovanni Bonello, Kristaq Traja, Stanislav Pavlovschi, Ján Šikuta, Päivi Hirvelä, and also of Lawrence Early, Section Registrar.
On 10 July 2007 the Chamber relinquished jurisdiction in favour of the Grand Chamber, neither party having objected to relinquishment (Article 30 of the Convention and Rule 72).
The composition of the Grand Chamber was determined according to the provisions of Article 27 §§ 2 and 3 of the Convention and Rule 24 of the Rules of Court.
The applicants and the Government each filed written memorials on the merits. In addition, third-party submissions were received from Ms Anna Fairclough on behalf of Liberty (the National Council for Civil Liberties) and from Covington and Burling LLP on behalf of Privacy International, who had been granted leave by the President to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2). Both parties replied to Liberty’s submissions and the Government also replied to the comments by Privacy International (Rule 44 § 5).
A hearing took place in public in the Human Rights Building, Strasbourg, on 27 February 2008 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mrs E. Willmott, Agent,
Mr Rabinder Singh QC,
Mr J. Strachan, Counsel,
Mr N. Fussell,
Ms P. Mcfarlane,
Mr M. Prior,
Mr S. Bramble,
Ms E. Rees,
Mr S. Sen, Advisers,
Mr D. Gourley,
Mr D. Loveday, Observers;
(b) for the applicants
Mr S. Cragg,
Mr A. Suterwalla, Counsel,
Mr P. Mahy, Solicitor.
The Court heard addresses by Mr S. Cragg and Mr Rabinder Singh QC as well as their answers to questions put by the Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants were born in 1989 and 1963 respectively and live in Sheffield.
The first applicant, Mr S., was arrested on 19 January 2001 at the age of eleven and charged with attempted robbery. His fingerprints and DNA samples1 were taken. He was acquitted on 14 June 2001.
The second applicant, Mr Michael Marper, was arrested on 13 March 2001 and charged with harassment of his partner. His fingerprints and DNA samples were taken. Before a pre-trial review took place, he and his partner had become reconciled, and the charge was not pressed. On 11 June 2001, the Crown Prosecution Service served a notice of discontinuance on the applicant’s solicitors, and on 14 June the case was formally discontinued.
Both applicants asked for their fingerprints and DNA samples to be destroyed, but in both cases the police refused. The applicants applied for judicial review of the police decisions not to destroy the fingerprints and samples. On 22 March 2002 the Administrative Court (Rose LJ and Leveson J) rejected the application [[2002] EWHC 478 (Admin)].
On 12 September 2002 the Court of Appeal upheld the decision of the Administrative Court by a majority of two (Lord Woolf CJ and Waller LJ) to one (Sedley LJ) ( [2002] EWCA Civ 1275 ). As regards the necessity of retaining DNA samples, Lord Justice Waller stated:
“… [F]ingerprints and DNA profiles reveal only limited personal information. The physical samples potentially contain very much greater and more personal and detailed information. The anxiety is that science may one day enable analysis of samples to go so far as to obtain information in relation to an individual’s propensity to commit certain crime and be used for that purpose within the language of the present section [Section 82 of the Criminal Justice and Police Act 2001]. It might also be said that the law might be changed in order to allow the samples to be used for purposes other than those identified by the section. It might also be said that while samples are retained there is even now a risk that they will be used in a way that the law does not allow. So, it is said, the aims could be achieved in a less restrictive manner… Why cannot the aim be achieved by retention of the profiles without retention of the samples?
The answer to [these] points is as I see it as follows. First the retention of samples permits (a) the checking of the integrity and future utility of the DNA database system; (b) a reanalysis for the upgrading of DNA profiles where new technology can improve the discriminating power of the DNA matching process; (c) reanalysis and thus an ability to extract other DNA markers and thus offer benefits in terms of speed, sensitivity and cost of searches of the database; (d) further analysis in investigations of alleged miscarriages of justice; and (e) further analysis so as to be able to identify any analytical or process errors. It is these benefits which must be balanced against the risks identified by Liberty. In relation to those risks, the position in any event is first that any change in the law will have to be itself Convention compliant; second any change in practice would have to be Convention compliant; and third unlawfulness must not be assumed. In my view thus the risks identified are not great, and such as they are they are outweighed by the benefits in achieving the aim of prosecuting and preventing crime.”
Lord Justice Sedley considered that the power of a Chief Constable to destroy data which he would ordinarily retain had to be exercised in every case, however rare such cases might be, where he or she was satisfied on conscientious consideration that the individual was free of any taint of suspicion. He also noted that the difference between the retention of samples and DNA profiles was that the retention of samples would enable more information to be derived than had previously been possible.
On 22 July 2004 the House of Lords dismissed an appeal by the applicants. Lord Steyn, giving the lead judgment, noted the legislative history of section 64 (1A) of the Police and Criminal Evidence Act 1984 (“the PACE”), in particular the way in which it had been introduced by Parliament following public disquiet about the previous law, which had provided that where a person was not prosecuted or was acquitted of offences, the sample had to be destroyed and the information could not be used. In two cases, compelling DNA evidence linking one suspect to a rape and another to a murder had not been able to be used, as at the time the matches were made both defendants had either been acquitted or a decision made not to proceed for the offences for which the profiles had been obtained: as a result it had not been possible to convict either suspect.
Lord Steyn noted that the value of retained fingerprints and samples taken from suspects was considerable. He gave the example of a case in 1999, in which DNA information from the perpetrator of a crime was matched with that of “I” in a search of the national database. The sample from “I” should have been destroyed, but had not been. “I” had pleaded guilty to rape and was sentenced. If the sample had not been wrongly detained, the offender might have escaped detection.
Lord Steyn also referred to statistical evidence from which it appeared that almost 6,000 DNA profiles had been linked with crime-scene stain profiles which would have been destroyed under the former provisions. The offences involved included 53 murders, 33 attempted murders, 94 rapes, 38 sexual offences, 63 aggravated burglaries and 56 cases involving the supply of controlled drugs. On the basis of the existing records, the Home Office statistics estimated that there was a 40% chance that a crime-scene sample would be matched immediately with an individual’s profile on the database. This showed that the fingerprints and samples which could now be retained had in the previous three years played a major role in the detection and prosecution of serious crime.
Lord Steyn also noted that the PACE dealt separately with the taking of fingerprints and samples, their retention and their use.
As to the Convention analysis, Lord Steyn inclined to the view that the mere retention of fingerprints and DNA samples did not constitute an interference with the right to respect for private life but stated that, if he were wrong in that view, he regarded any interference as very modest indeed. Questions of whether in the future retained samples could be misused were not relevant in respect of contemporary use of retained samples in connection with the detection and prosecution of crime. If future scientific developments required it, judicial decisions could be made, when the need occurred, to ensure compatibility with the Convention. The provision limiting the permissible use of retained material to “purposes related to the prevention or detection of crime …” did not broaden the permitted use unduly, because it was limited by its context.
If the need to justify the modest interference with private life arose, Lord Steyn agreed with Lord Justice Sedley in the Court of Appeal that the purposes of retention – the prevention of crime and the protection of the right of others to be free from crime – were “provided for by law”, as required by Article 8.
As to the justification for any interference, the applicants had argued that the retention of fingerprints and DNA samples created suspicion in respect of persons who had been acquitted. Counsel for the Home Secretary had contended that the aim of the retention had nothing to do with the past, that is, with the offence of which a person was acquitted, but that it was to assist in the investigation of offences in the future. The applicants would only be affected by the retention of the DNA samples if their profiles matched those found at the scene of a future crime. Lord Steyn saw five factors which led to the conclusion that the interference was proportionate to the aim: (i) the fingerprints and samples were kept only for the limited purpose of the detection, investigation and prosecution of crime; (ii) the fingerprints and samples were not of any use without a comparator fingerprint or sample from the crime scene; (iii) the fingerprints would not be made public; (iv) a person was not identifiable from the retained material to the untutored eye, and (v) the resultant expansion of the database by the retention conferred enormous advantages in the fight against serious crime.
In reply to the contention that the same legislative aim could be obtained by less intrusive means, namely by a case-by-case consideration of whether or not to retain fingerprints and samples, Lord Steyn referred to Lord Justice Waller’s comments in the Court of Appeal that “[i]f justification for retention is in any degree to be by reference to the view of the police on the degree of innocence, then persons who have been acquitted and have their samples retained can justifiably say this stigmatises or discriminates against me – I am part of a pool of acquitted persons presumed to be innocent, but I am treated as though I was not. It is not in fact in any way stigmatising someone who has been acquitted to say simply that samples lawfully obtained are retained as the norm, and it is in the public interest in its fight against crime for the police to have as large a database as possible”.
Lord Steyn did not accept that the difference between samples and DNA profiles affected the position.
The House of Lords further rejected the applicants’ complaint that the retention of their fingerprints and samples subjected them to discriminatory treatment in breach of Article 14 of the Convention when compared to the general body of persons who had not had their fingerprints and samples taken by the police in the course of a criminal investigation. Lord Steyn held that, even assuming that the retention of fingerprints and samples fell within the ambit of Article 8 so as to trigger the application of Article 14, the difference of treatment relied on by the applicants was not one based on “status” for the purposes of Article 14: the difference simply reflected the historical fact, unrelated to any personal characteristic, that the authorities already held the fingerprints and samples of the individuals concerned which had been lawfully taken. The applicants and their suggested comparators could not in any event be said to be in an analogous situation. Even if, contrary to his view, it was necessary to consider the justification for any difference in treatment, Lord Steyn held that such objective justification had been established: first, the element of legitimate aim was plainly present, as the increase in the database of fingerprints and samples promoted the public interest by the detection and prosecution of serious crime and by exculpating the innocent; secondly, the requirement of proportionality was satisfied, section 64 (1A) of the PACE objectively representing a measured and proportionate response to the legislative aim of dealing with serious crime.
Baroness Hale of Richmond disagreed with the majority considering that the retention of both fingerprint and DNA data constituted an interference by the State in a person’s right to respect for his private life and thus required justification under the Convention. In her opinion, this was an aspect of what had been called informational privacy and there could be little, if anything, more private to the individual than the knowledge of his genetic make-up. She further considered that the difference between fingerprint and DNA data became more important when it came to justify their retention as the justifications for each of these might be very different. She agreed with the majority that such justifications had been readily established in the applicants’ cases.
II. RELEVANT DOMESTIC LAW AND MATERIALS
A. England and Wales
1. Police and Criminal Evidence Act 1984
The Police and Criminal Evidence Act 1984 (the PACE) contains powers for the taking of fingerprints (principally section 61) and samples (principally section 63). By section 61, fingerprints may only be taken without consent if an officer of at least the rank of superintendent authorises the taking, or if the person has been charged with a recordable offence or has been informed that he will be reported for such an offence. Before fingerprints are taken, the person must be informed that the prints may be the subject of a speculative search, and the fact of the informing must be recorded as soon as possible. The reason for the taking of the fingerprints is recorded in the custody record. Parallel provisions relate to the taking of samples (section 63).
As to the retention of such fingerprints and samples (and the records thereof), section 64 (1A) of the PACE was substituted by Section 82 of the Criminal Justice and Police Act 2001. It provides as follows:
“Where – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence, and (b) subsection (3) below does not require them to be destroyed, the fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution. …
(3) If – (a) fingerprints or samples are taken from a person in connection with the investigation of an offence; and (b) that person is not suspected of having committed the offence, they must except as provided in the following provisions of this Section be destroyed as soon as they have fulfilled the purpose for which they were taken.
(3AA) Samples and fingerprints are not required to be destroyed under subsection (3) above if (a) they were taken for the purposes of the investigation of an offence of which a person has been convicted; and (b) a sample or, as the case may be, fingerprint was also taken from the convicted person for the purposes of that investigation.”
Section 64 in its earlier form had included a requirement that if the person from whom the fingerprints or samples were taken in connection with the investigation was acquitted of that offence, the fingerprints and samples, subject to certain exceptions, were to be destroyed “as soon as practicable after the conclusion of the proceedings”.
The subsequent use of materials retained under section 64 (1A) is not regulated by statute, other than the limitation on use contained in that provision. In Attorney General’s Reference (No 3 of 1999) [2001] 2 AC 91, the House of Lords had to consider whether it was permissible to use in evidence a sample which should have been destroyed under the then text of section 64 the PACE. The House considered that the prohibition on the use of an unlawfully retained sample “for the purposes of any investigation” did not amount to a mandatory exclusion of evidence obtained as a result of a failure to comply with the prohibition, but left the question of admissibility to the discretion of the trial judge.
2. Data Protection Act 1998
The Data Protection Act was adopted on 16 July 1998 to give effect to the Directive 95/46/EC of the European Parliament and of the Council dated 24 October 1995 (see paragraph 50 below). Under the Data Protection Act “personal data” means data which relate to a living individual who can be identified – (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual (section 1). “Sensitive personal data” means personal data consisting, inter alia, of information as to the racial or ethnic origin of the data subject, the commission or alleged commission by him of any offence, or any proceedings for any offence committed or alleged to have been committed by him, the disposal of such proceedings or the sentence of any court in such proceedings (section 2).
31. The Act stipulates that the processing of personal data is subject to eight data protection principles listed in Schedule 1. Under the first principle personal data shall be processed fairly and lawfully and, in particular shall not be processed unless – (a) at least one of the conditions in Schedule 2 is met, and (b) in case of sensitive personal data, at least one of the conditions in Schedule 3 is also met. Schedule 2 contains a detailed list of conditions, and provides inter alia that the processing of any personal data is necessary for the administration of justice or for the exercise of any other functions of a public nature exercised in the public interest by any person (§5(a) and (d)). Schedule 3 contains a more detailed list of conditions, including that the processing of sensitive personal data is necessary for the purpose of, or in connection with, any legal proceedings (§6(a)), or for the administration of justice (§7(a)), and is carried out with appropriate safeguards for the rights and freedoms of data subjects (§4(b)). Section 29 notably provides that personal data processed for the prevention or detection of crime are exempt from the first principle except to the extent to which it requires compliance with the conditions in Schedules 2 and 3. The fifth principle stipulates that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
The Information Commissioner created pursuant to the Act (as amended) has an independent duty to promote the following of good practice by data controllers and has power to make orders (“enforcement notices”) in this respect (section 40). The Act makes it a criminal offence not to comply with an enforcement notice (section 47) or to obtain or disclose personal data or information contained therein without the consent of the data controller (section 55). Section 13 affords a right to claim damages in the domestic courts in respect of contraventions of the Act.
3. Retention Guidelines for Nominal Records on the Police National Computer 2006
33. A set of guidelines for the retention of fingerprint and DNA information is contained in the Retention Guidelines for Nominal Records on the Police National Computer 2006 drawn up by the Association of Chief Police Officers in England and Wales. The Guidelines are based on a format of restricting access to the Police National Computer (PNC) data, rather than the deletion of that data. They recognise that their introduction may thus have implications for the business of the non-police agencies with which the police currently share PNC data.
34. The Guidelines set various degrees of access to the information contained on the PNC through a process of “stepping down” access. Access to information concerning persons who have not been convicted of an offence is automatically “stepped down” so that this information is only open to inspection by the police. Access to information about convicted persons is likewise “stepped down” after the expiry of certain periods of time ranging from 5 to 35 years, depending on the gravity of the offence, the age of the suspect and the sentence imposed. For certain convictions the access will never be “stepped down”.
35. Chief Police Officers are the Data Controllers of all PNC records created by their force. They have the discretion in exceptional circumstances to authorise the deletion of any conviction, penalty notice for disorder, acquittal or arrest histories “owned” by them. An “exceptional case procedure” to assist Chief Officers in relation to the exercise of this discretion is set out in Appendix 2. It is suggested that exceptional cases are rare by definition and include those where the original arrest or sampling was unlawful or where it is established beyond doubt that no offence existed. Before deciding whether a case is exceptional, the Chief Officer is instructed to seek advice from the DNA and Fingerprint Retention Project.
B. Scotland
Under the 1995 Criminal Procedure Act of Scotland, as subsequently amended, the DNA samples and resulting profiles must be destroyed if the individual is not convicted or is granted an absolute discharge. A recent qualification provides that biological samples and profiles may be retained for three years, if the arrestee is suspected of certain sexual or violent offences even if a person is not convicted (section 83 of the 2006 Act, adding section 18A to the 1995 Act.). Thereafter, samples and information are required to be destroyed unless a Chief Constable applies to a Sheriff for a two-year extension.
C. Northern Ireland
37. The Police and Criminal Evidence Order of Northern Ireland 1989 was amended in 2001 in the same way as the PACE applicable in England and Wales. The relevant provisions currently governing the retention of fingerprint and DNA data in Northern Ireland are identical to those in force in England and Wales (see paragraph 27 above).
D. Nuffield Council on Bioethics’ report1
38. According to a recent report by the Nuffield Council on Bioethics, the retention of fingerprints, DNA profiles and biological samples is generally more controversial than the taking of such bioinformation, and the retention of biological samples raises greater ethical concerns than digitised DNA profiles and fingerprints, given the differences in the level of information that could be revealed. The report referred in particular to the lack of satisfactory empirical evidence to justify the present practice of retaining indefinitely fingerprints, samples and DNA profiles from all those arrested for a recordable offence, irrespective of whether they were subsequently charged or convicted. The report voiced particular concerns at the policy of permanently retaining the bioinformation of minors, having regard to the requirements of the 1989 UN Convention on the Rights of the Child.
39. The report also expressed concerns at the increasing use of the DNA data for familial searching, inferring ethnicity and non-operational research. Familial searching is the process of comparing a DNA profile from a crime scene with profiles stored on the national database, and prioritising them in terms of ‘closeness’ to a match. This allowed identifying possible genetic relatives of an offender. Familial searching might thus lead to revealing previously unknown or concealed genetic relationships. The report considered the use of the DNA data base in searching for relatives as particularly sensitive.
40. The particular combination of alleles1 in a DNA profile can furthermore be used to assess the most likely ethnic origin of the donor. Ethnic inferring through DNA profiles was possible as the individual “ethnic appearance” was systematically recorded on the data base: when taking biological samples, police officers routinely classified suspects into one of seven “ethnical appearance” categories. Ethnicity tests on the data base might thus provide inferences for use during a police investigation in order for example to help reduce a ‘suspect pool’ and to inform police priorities. The report noted that social factors and policing practices lead to a disproportionate number of people from black and ethnic minority groups being stopped, searched and arrested by the police, and hence having their DNA profiles recorded; it therefore voiced concerns that inferring ethnic identity from biological samples might reinforce racist views of propensity to criminality.
III. RELEVANT NATIONAL AND INTERNATIONAL MATERIAL
A. Council of Europe texts
The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data (“the Data Protection Convention”), which entered into force for the United Kingdom on 1 December 1987, defines “personal data” as any information relating to an identified or identifiable individual (“data subject”). The Convention provides inter alia:
“Article 5 – Quality of data
Personal data undergoing automatic processing shall be: …
b. stored for specified and legitimate purposes and not used in a way incompatible with those purposes;
c. adequate, relevant and not excessive in relation to the purposes for which they are stored;
…
e. preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored.
Article 6 – Special categories of data
Personal data revealing racial origin, political opinions or religious or other beliefs, as well as personal data concerning health or sexual life, may not be processed automatically unless domestic law provides appropriate safeguards. (…)
Article 7 – Data security
Appropriate security measures shall be taken for the protection of personal data stored in automated data files against accidental or unauthorised destruction or accidental loss as well as against unauthorised access, alteration or dissemination.”
Recommendation No. R(87)15 regulating the use of personal data in the police sector (adopted on 17 September 1987) states, inter alia:
“Principle 2 – Collection of data
2.1 The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation. …
Principle 3 – Storage of data
3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law….
Principle 7 – Length of storage and updating of data
7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.”
Recommendation No. R(92)1 on the use of analysis of deoxyribonucleic acid (DNA) within the framework of the criminal justice system (adopted on 10 February 1992) states, inter alia:
“3. Use of samples and information derived therefrom
Samples collected for DNA analysis and the information derived from such analysis for the purpose of the investigation and prosecution of criminal offences must not be used for other purposes. …
Samples taken for DNA analysis and the information so derived may be needed for research and statistical purposes. Such uses are acceptable provided the identity of the individual cannot be ascertained. Names or other identifying references must therefore be removed prior to their use for these purposes.
4. Taking of samples for DNA analysis
The taking of samples for DNA analysis should only be carried out in circumstances determined by the domestic law; it being understood that in some states this may necessitate specific authorisation from a judicial authority…
8. Storage of samples and data
Samples or other body tissue taken from individuals for DNA analysis should not be kept after the rendering of the final decision in the case for which they were used, unless it is necessary for purposes directly linked to those for which they were collected.
Measures should be taken to ensure that the results of DNA analysis are deleted when it is no longer necessary to keep it for the purposes for which it was used. The results of DNA analysis and the information so derived may, however, be retained where the individual concerned has been convicted of serious offences against the life, integrity or security of persons. In such cases strict storage periods should be defined by domestic law.
Samples and other body tissues, or the information derived from them, may be stored for longer periods:
– when the person so requests; or
– when the sample cannot be attributed to an individual, for example when it is found at the scene of a crime;
Where the security of the state is involved, the domestic law of the member state may permit retention of the samples, the results of DNA analysis and the information so derived even though the individual concerned has not been charged or convicted of an offence. In such cases strict storage periods should be defined by domestic law. …”
The Explanatory Memorandum to the Recommendation stated, as regards item 8:
“47. The working party was well aware that the drafting of Recommendation 8 was a delicate matter, involving different protected interests of a very difficult nature. It was necessary to strike the right balance between these interests. Both the European Convention on Human Rights and the Data Protection Convention provide exceptions for the interests of the suppression of criminal offences and the protection of the rights and freedoms of third parties. However, the exceptions are only allowed to the extent that they are compatible with what is necessary in a democratic society. …
49. Since the primary aim of the collection of samples and the carrying out of DNA analysis on such samples is the identification of offenders and the exoneration of suspected offenders, the data should be deleted once persons have been cleared of suspicion. The issue then arises as to how long the DNA findings and the samples on which they were based can be stored in the case of a finding of guilt.
50. The general rule should be that the data are deleted when they are no longer necessary for the purposes for which they were collected and used. This would in general be the case when a final decision has been rendered as to the culpability of the offender. By ‘final decision’ the CAHBI thought that this would normally, under domestic law, refer to a judicial decision. However, the working party recognised that there was a need to set up data bases in certain cases and for specific categories of offences which could be considered to constitute circumstances warranting another solution, because of the seriousness of the offences. The working party came to this conclusion after a thorough analysis of the relevant provisions in the European Convention on Human Rights, the Data Protection Convention and other legal instruments drafted within the framework of the Council of Europe. In addition, the working party took into consideration that all member states keep a criminal record and that such record may be used for the purposes of the criminal justice system… It took into account that such an exception would be permissible under certain strict conditions:
– when there has been a conviction;
– when the conviction concerns a serious criminal offence against the life, integrity and security of a person;
– the storage period is limited strictly;
– the storage is defined and regulated by law;
– the storage is subject to control by Parliament or an independent supervisory body…”
B. Law and practice in the Council of Europe member States
According to the information provided by the parties or otherwise available to the Court, a majority of the Council of Europe member States allow the compulsory taking of fingerprints and cellular samples in the context of criminal proceedings. At least 20 member States make provision for the taking of DNA information and storing it on national data bases or in other forms (Austria, Belgium, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland1, Italy2, Latvia, Luxembourg, the Netherlands, Norway, Poland, Spain, Sweden and Switzerland). This number is steadily increasing.
In most of these countries (including Austria, Belgium, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, the Netherlands, Norway, Poland, Spain and Sweden), the taking of DNA information in the context of criminal proceedings is not systematic but limited to some specific circumstances and/or to more serious crimes, notably those punishable by certain terms of imprisonment.
The United Kingdom is the only member State expressly to permit the systematic and indefinite retention of DNA profiles and cellular samples of persons who have been acquitted or in respect of whom criminal proceedings have been discontinued. Five States (Belgium, Hungary, Ireland, Italy and Sweden) require such information to be destroyed ex officio upon acquittal or the discontinuance of the criminal proceedings. Ten other States apply the same general rule with certain very limited exceptions: Germany, Luxembourg and the Netherlands allow such information to be retained where suspicions remain about the person or if further investigations are needed in a separate case; Austria permits its retention where there is a risk that the suspect will commit a dangerous offence and Poland does likewise in relation to certain serious crimes; Norway and Spain allow the retention of profiles if the defendant is acquitted for lack of criminal accountability; Finland and Denmark allow retention for 1 and 10 years respectively in the event of an acquittal and Switzerland for 1 year when proceedings have been discontinued. In France DNA profiles can be retained for 25 years after an acquittal or discharge; during this period the public prosecutor may order their earlier deletion, either on his or her own motion or upon request, if their retention has ceased to be required for the purposes of identification in connection with a criminal investigation. Estonia and Latvia also appear to allow the retention of DNA profiles of suspects for certain periods after acquittal.
The retention of DNA profiles of convicted persons is allowed, as a general rule, for limited periods of time after the conviction or after the convicted person’s death. The United Kingdom thus also appears to be the only member State expressly to allow the systematic and indefinite retention of both profiles and samples of convicted persons.
Complaint mechanisms before data-protection monitoring bodies and/or before courts are available in most of the member States with regard to decisions to take celular samples or retain samples or DNA profiles.
C. European Union
Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data provides that the object of national laws on the processing of personal data is notably to protect the right to privacy as recognised both in Article 8 of the European Convention on Human Rights and in the general principles of Community law. The Directive sets out a number of principles in order to give substance to and amplify those contained in the Data Protection Convention of the Council of Europe. It allows Member States to adopt legislative measures to restrict the scope of certain obligations and rights provided for in the Directive when such a restriction constitutes notably a necessary measure for the prevention, investigation, detection and prosecution of criminal offences (Article 13).
The Prüm Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, which was signed by several members of the European Union on 27 May 2005, sets out rules for the supply of fingerprinting and DNA data to other Contracting Parties and their automated checking against their relevant data bases. The Convention provides inter alia:
“Article 35 – Purpose
2. … The Contracting Party administering the file may process the data supplied (…) solely where this is necessary for the purposes of comparison, providing automated replies to searches or recording… The supplied data shall be deleted immediately following data comparison or automated replies to searches unless further processing is necessary for the purposes mentioned [above].”
Article 34 guarantees a level of protection of personal data at least equal to that resulting from the Data Protection Convention and requires the Contracting Parties to take into account Recommendation R (87) 15 of the Committee of Ministers of the Council of Europe.
The Council framework decision of 24 June 2008 on the protection of personal data processed in the framework of police and judicial cooperation in criminal matters states inter alia:
“Article 5
Establishment of time-limits for erasure and review
Appropriate time-limits shall be established for the erasure of personal data or for a periodic review of the need for the storage of the data. Procedural measures shall ensure that these time-limits are observed.”
D. Case-law in other jurisdictions
In the case of R v. RC ( [2005] 3 SCR 99, 2005 SCC 61 ) the Supreme Court of Canada considered the issue of retaining a juvenile first-time offender’s DNA sample on the national data bank. The court upheld the decision by a trial judge who had found, in the light of the principles and objects of youth criminal justice legislation, that the impact of the DNA retention would be grossly disproportionate. In his opinion, Fish J. observed:
“Of more concern, however, is the impact of an order on an individual’s informational privacy interests. In R. v. Plant, [1993] 3 SCR 281, at p. 293, the Court found that s. 8 of the Charter protected the ‘biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state’. An individual’s DNA contains the ‘highest level of personal and private information’: S.A.B., at para. 48. Unlike a fingerprint, it is capable of revealing the most intimate details of a person’s biological makeup. … The taking and retention of a DNA sample is not a trivial matter and, absent a compelling public interest, would inherently constitute a grave intrusion on the subject’s right to personal and informational privacy.”
E. UN Convention on the Rights of the Child of 1989
Article 40 of the UN Convention on the Rights of the Child of 20 November 1989 states the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.
IV. THIRD PARTIES’ SUBMISSIONS
The National Council for Civil Liberties (“Liberty”) submitted case-law and scientific material highlighting, inter alia, the highly sensitive nature of cellular samples and DNA profiles and the impact on private life arising from their retention by the authorities.
Privacy International referred to certain core data-protection rules and principles developed by the Council of Europe and insisted on their high relevance for the interpretation of the proportionality requirement enshrined in Article 8 of the Convention. It emphasised in particular the “strict periods” recommended by Recommendation R (92) 1 for the storage of cellular samples and DNA profiles. It further pointed out a disproportionate representation on the United Kingdom national DNA data base of certain groups of population, notably youth, and the unfairness that situation might create. The use of data for familial testing and additional research purposes was also of concern. Privacy International also provided a summary of comparative data on the law and practice of different countries with regard to DNA storage and stressed the numerous restrictions and safeguards which existed in that respect.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicants complained under Article 8 of the Convention about the retention of their fingerprints, cellular samples and DNA profiles pursuant to section 64 (1A) of the Police and Criminal Evidence Act 1984 (“the PACE”). Article 8 provides, so far as relevant, as follows:
“1. Everyone has the right to respect for his private … life …
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society … for the prevention of disorder or crime…”
A. Existence of an interference with private life
The Court will first consider whether the retention by the authorities of the applicants’ fingerprints, DNA profiles and cellular samples constitutes an interference in their private life.
1. The parties’ submissions
(a) The applicants
The applicants submitted that the retention of their fingerprints, cellular samples and DNA profiles interfered with their right to respect for private life as they were crucially linked to their individual identity and concerned a type of personal information that they were entitled to keep within their control. They recalled that the initial taking of such bio-information had consistently been held to engage Article 8 and submitted that their retention was more controversial given the wealth of private information that became permanently available to others and thus came out of the control of the person concerned. They stressed in particular the social stigma and psychological implications provoked by such retention in the case of children, which made the interference with the right to private life all the more pressing in respect of the first applicant.
They considered that the Convention organs’ case-law supported this contention, as did a recent domestic decision of the Information Tribunal (Chief Constables of West Yorkshire, South Yorkshire and North Wales Police v. the Information Commissioner, [2005] UKIT DA_05_0010 (12 October 2005), 173). The latter decision relied on the speech of Baroness Hale of Richmond in the House of Lords (see paragraph 25 above) and followed in substance her finding when deciding a similar question about the application of Article 8 to the retention of conviction data.
They further emphasised that retention of cellular samples involved an even greater degree of interference with Article 8 rights as they contained full genetic information about a person including genetic information about his or her relatives. It was of no significance whether information was actually extracted from the samples or caused a detriment in a particular case as an individual was entitled to a guarantee that such information which fundamentally belonged to him would remain private and not be communicated or accessible without his permission.
(b) The Government
The Government accepted that fingerprints, DNA profiles and samples were “personal data” within the meaning of the Data Protection Act in the hands of those who can identify the individual. They considered, however, that the mere retention of fingerprints, DNA profiles and samples for the limited use permitted under section 64 of the PACE did not fall within the ambit of the right to respect for private life under Article 8 § 1 of the Convention. Unlike the initial taking of this data, their retention did not interfere with the physical and psychological integrity of the persons; nor did it breach their right to personal development, to establish and develop relationships with other human beings or the right to self-determination.
The Government submitted that the applicants’ real concerns related to fears about the future uses of stored samples, to anticipated methods of analysis of DNA material and to potential intervention with the private life of individuals through active surveillance. It emphasised in this connection that the permitted extent of the use of the material was clearly and expressly limited by the legislation, the technological processes of DNA profiling and the nature of the DNA profile extracted.
The profile was merely a sequence of numbers which provided a means of identifying a person against bodily tissue, containing no materially intrusive information about an individual or his personality. The DNA database was a collection of such profiles which could be searched using material from a crime scene and a person would be identified only if and to the extent that a match was obtained against the sample. Familial searching through partial matches only occurred in very rare cases and was subject to very strict controls. Fingerprints, DNA profiles and samples were neither susceptible to any subjective commentary nor provided any information about a person’s activities and thus presented no risk to affect the perception of an individual or affect his or her reputation. Even if such retention were capable of falling within the ambit of Article 8 § 1 the extremely limited nature of any adverse effects rendered the retention not sufficiently serious to constitute an interference.
2. The Court’s assessment
(a) General principles
The Court recalls that the concept of “private life” is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 III, 35 EHRR 1, and Y.F. v. Turkey, no. 24209/94, § 33, ECHR 2003 IX, 39 EHRR 34 ). It can therefore embrace multiple aspects of the person’s physical and social identity (see Mikulic v. Croatia, no. 53176/99, § 53, ECHR 2002-I, BAILII: [2002] ECHR 27 ). Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8 (see, among other authorities, Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001, 33 EHRR 10, I with further references, and Peck v. the United Kingdom, no. 44647/98, § 57, ECHR 2003 I, 36 EHRR 41 ). Beyond a person’s name, his or her private and family life may include other means of personal identification and of linking to a family (see mutatis mutandis Burghartz v. Switzerland, 22 February 1994, § 24, Series A no. 280 B; and Ünal Tekeli v. Turkey, no. 29865/96, § 42, ECHR 2004 X (extracts), 42 EHRR 53 ). Information about the person’s health is an important element of private life (see Z. v. Finland, 25 February 1997, § 71, Reports of Judgments and Decisions 1997 I, 25 EHRR 371). The Court furthermore considers that an individual’s ethnic identity must be regarded as another such element (see in particular Article 6 of the Data Protection Convention quoted in paragraph 41 above, which lists personal data revealing racial origin as a special category of data along with other sensitive information about an individual). Article 8 protects in addition a right to personal development, and the right to establish and develop relationships with other human beings and the outside world (see, for example, Burghartz, cited above, opinion of the Commission, p. 37, § 47, and Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 20, § 45, 21 EHRR 83). The concept of private life moreover includes elements relating to a person’s right to their image (Sciacca v. Italy, no. 50774/99, § 29, ECHR 2005-I, 43 EHRR 20).
The mere storing of data relating to the private life of an individual amounts to an interference within the meaning of Article 8 (see Leander v. Sweden, 26 March 1987, § 48, Series A no. 116, 9 EHRR 433). The subsequent use of the stored information has no bearing on that finding (Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000-II, 30 EHRR 843). However, in determining whether the personal information retained by the authorities involves any of the private-life aspects mentioned above, the Court will have due regard to the specific context in which the information at issue has been recorded and retained, the nature of the records, the way in which these records are used and processed and the results that may be obtained (see, mutatis mutandis, Friedl, cited above, §§49-51, and Peck v. the United Kingdom, cited above, § 59).
(b) Application of the principles to the present case
The Court notes at the outset that all three categories of the personal information retained by the authorities in the present cases, namely fingerprints, DNA profiles and cellular samples, constitute personal data within the meaning of the Data Protection Convention as they relate to identified or identifiable individuals. The Government accepted that all three categories are “personal data” within the meaning of the Data Protection Act 1998 in the hands of those who are able to identify the individual.
The Convention organs have already considered in various circumstances questions relating to the retention of such personal data by the authorities in the context of criminal proceedings. As regards the nature and scope of the information contained in each of these three categories of data, the Court has distinguished in the past between the retention of fingerprints and the retention of cellular samples and DNA profiles in view of the stronger potential for future use of the personal information contained in the latter (see Van der Velden v. the Netherlands (dec.), no. 29514/05, ECHR 2006-…, BAILII: [2006] ECHR 1174 ). The Court considers it appropriate to examine separately the question of interference with the applicants’ right to respect for their private lives by the retention of their cellular samples and DNA profiles on the one hand, and of their fingerprints on the other.
(i) Cellular samples and DNA profiles
In Van der Velden, LANG=”nl-NL”> the Court considered that, given the use to which cellular material in particular could conceivably be put in the future, the systematic retention of that material was sufficiently intrusive to disclose interference with the right to respect for private life (see Van der Velden cited above). The Government criticised that conclusion on the ground that it speculated on the theoretical future use of samples and that there was no such interference at present.
The Court maintains its view that an individual’s concern about the possible future use of private information retained by the authorities is legitimate and relevant to a determination of the issue of whether there has been an interference. Indeed, bearing in mind the rapid pace of developments in the field of genetics and information technology, the Court cannot discount the possibility that in the future the private-life interests bound up with genetic information may be adversely affected in novel ways or in a manner which cannot be anticipated with precision today. Accordingly, the Court does not find any sufficient reason to depart from its finding in the Van der Velden case.
Legitimate concerns about the conceivable use of cellular material in the future are not, however, the only element to be taken into account in the determination of the present issue. In addition to the highly personal nature of cellular samples, the Court notes that they contain much sensitive information about an individual, including information about his or her health. Moreover, samples contain a unique genetic code of great relevance to both the individual and his relatives. In this respect the Court concurs with the opinion expressed by Baroness Hale in the House of Lords (see paragraph 25 above).
Given the nature and the amount of personal information contained in cellular samples, their retention per se must be regarded as interfering with the right to respect for the private lives of the individuals concerned. That only a limited part of this information is actually extracted or used by the authorities through DNA profiling and that no immediate detriment is caused in a particular case does not change this conclusion (see Amann cited above, § 69).
As regards DNA profiles themselves, the Court notes that they contain a more limited amount of personal information extracted from cellular samples in a coded form. The Government submitted that a DNA profile is nothing more than a sequence of numbers or a bar-code containing information of a purely objective and irrefutable character and that the identification of a subject only occurs in case of a match with another profile in the database. They also submitted that, being in coded form, computer technology is required to render the information intelligible and that only a limited number of persons would be able to interpret the data in question.
The Court observes, nonetheless, that the profiles contain substantial amounts of unique personal data. While the information contained in the profiles may be considered objective and irrefutable in the sense submitted by the Government, their processing through automated means allows the authorities to go well beyond neutral identification. The Court notes in this regard that the Government accepted that DNA profiles could be, and indeed had in some cases been, used for familial searching with a view to identifying a possible genetic relationship between individuals. They also accepted the highly sensitive nature of such searching and the need for very strict controls in this respect. In the Court’s view, the DNA profiles’ capacity to provide a means of identifying genetic relationships between individuals (see paragraph 39 above) is in itself sufficient to conclude that their retention interferes with the right to the private life of the individuals concerned. The frequency of familial searches, the safeguards attached thereto and the likelihood of detriment in a particular case are immaterial in this respect (see Amann cited above, § 69). This conclusion is similarly not affected by the fact that, since the information is in coded form, it is intelligible only with the use of computer technology and capable of being interpreted only by a limited number of persons.
The Court further notes that it is not disputed by the Government that the processing of DNA profiles allows the authorities to assess the likely ethnic origin of the donor and that such techniques are in fact used in police investigations (see paragraph 40 above). The possibility the DNA profiles create for inferences to be drawn as to ethnic origin makes their retention all the more sensitive and susceptible of affecting the right to private life. This conclusion is consistent with the principle laid down in the Data Protection Convention and reflected in the Data Protection Act that both list personal data revealing ethnic origin among the special categories of sensitive data attracting a heightened level of protection (see paragraphs 30-31 and 41 above).
In view of the foregoing, the Court concludes that the retention of both cellular samples and DNA profiles discloses an interference with the applicants’ right to respect for their private lives, within the meaning of Article 8 § 1 of the Convention.
(ii) Fingerprints
It is common ground that fingerprints do not contain as much information as either cellular samples or DNA profiles. The issue of alleged interference with the right to respect for private life caused by their retention by the authorities has already been considered by the Convention organs.
In McVeigh, the Commission first examined the issue of the taking and retention of fingerprints as part of a series of investigative measures. It accepted that at least some of the measures disclosed an interference with the applicants’ private life, while leaving open the question of whether the retention of fingerprints alone would amount to such interference (McVeigh, O’Neill and Evans (no. 8022/77, 8025/77 and 8027/77, Report of the Commission of 18 March 1981, DR 25, p.15, § 224).
In Kinnunen, the Commission considered that fingerprints and photographs retained following the applicant’s arrest did not constitute an interference with his private life as they did not contain any subjective appreciations which called for refutation. The Commission noted, however, that the data at issue had been destroyed nine years later at the applicant’s request (Kinnunen v. Finland, no. 24950/94, Commission decision of 15 May 1996, BAILII: [1996] ECHR 104).
Having regard to these findings and the questions raised in the present case, the Court considers it appropriate to review this issue. It notes at the outset that the applicants’ fingerprint records constitute their personal data (see paragraph 68 above) which contain certain external identification features much in the same way as, for example, personal photographs or voicesamples.
In Friedl, the Commission considered that the retention of anonymous photographs that have been taken at a public demonstration did not interfere with the right to respect for private life. In so deciding, it attached special weight to the fact that the photographs concerned had not been entered in a data-processing system and that the authorities had taken no steps to identify the persons photographed by means of data processing (see Friedl cited above, §§ 49-51).
In P.G. and J.H., the Court considered that the recording of data and the systematic or permanent nature of the record could give rise to private-life considerations even though the data in question may have been available in the public domain or otherwise. The Court noted that a permanent record of a person’s voice for further analysis was of direct relevance to identifying that person when considered in conjunction with other personal data. It accordingly regarded the recording of the applicants’ voices for such further analysis as amounting to interference with their right to respect for their private lives (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 59-60, ECHR 2001 IX, BAILII: [2001] ECHR 550 ).
The Court is of the view that the general approach taken by the Convention organs in respect of photographs and voice samples should also be followed in respect of fingerprints. The Government distinguished the latter by arguing that they constituted neutral, objective and irrefutable material and, unlike photographs, were unintelligible to the untutored eye and without a comparator fingerprint. While true, this consideration cannot alter the fact that fingerprints objectively contain unique information about the individual concerned allowing his or her identification with precision in a wide range of circumstances. They are thus capable of affecting his or her private life and retention of this information without the consent of the individual concerned cannot be regarded as neutral or insignificant.
The Court accordingly considers that the retention of fingerprints on the authorities’ records in connection with an identified or identifiable individual may in itself give rise, notwithstanding their objective and irrefutable character, to important private-life concerns.
In the instant case, the Court notes furthermore that the applicants’ fingerprints were initially taken in criminal proceedings and subsequently recorded on a nationwide database with the aim of being permanently kept and regularly processed by automated means for criminal-identification purposes. It is accepted in this regard that, because of the information they contain, the retention of cellular samples and DNA profiles has a more important impact on private life than the retention of fingerprints. However, the Court, like Baroness Hale (see paragraph 25 above), considers that, while it may be necessary to distinguish between the taking, use and storage of fingerprints, on the one hand, and samples and profiles, on the other, in determining the question of justification, the retention of fingerprints constitutes an interference with the right to respect for private life.
B. Justification for the interference
1. The parties’ submissions
(a) The applicants
The applicants argued that the retention of fingerprints, cellular samples and DNA profiles was not justified under the second paragraph of Article 8. The Government were given a verywide remit to use samples and DNA profiles notably for “purposes related to the prevention or detection of crime”, “the investigation of an offence” or “the conduct of a prosecution”. These purposes were vague and open to abuse as they might in particular lead to the collation of detailed personal information outside the immediate context of the investigation of a particular offence. The applicants further submitted that there were insufficient procedural safeguards against misuse or abuse of the information. Records on the PNC were not only accessible to the police, but also to 56 non-police bodies, including Government agencies and departments, private groups such as British Telecom and the Association of British Insurers, and even certain employers. Furthermore, the PNC was linked to the Europe-wide “Schengen Information System”. Consequently, their case involved a very substantial and controversial interference with the right to private life, as notably illustrated by ongoing public debate and disagreement about the subject in the United Kingdom. Contrary to the assertion of the Government, the applicants concluded that the issue of the retention of this material was of great individual concern and the State had a narrow margin of appreciation in this field.
The applicants contended that the indefinite retention of fingerprints, cellular samples and DNA profiles of unconvicted persons could not be regarded as “necessary in a democratic society” for the purpose of preventing crime. In particular, there was no justification at all for the retention of cellular samples following the original generation of the DNA profile; nor had the efficacy of the profiles’ retention been convincingly demonstrated since the high number of DNA matches relied upon by the Government was not shown to have led to successful prosecutions. Likewise, in most of the specific examples provided by the Government the successful prosecution had not been contingent on the retention of the records and in certain others the successful outcome could have been achieved through more limited retention in time and scope.
The applicants further submitted that the retention was disproportionate because of its blanket nature irrespective of the offences involved, the unlimited period, the failure to take account of the applicants’ circumstances and the lack of an independent decision-making process or scrutiny when considering whether or not to order retention. They further considered the retention regime to be inconsistent with the Council of Europe’s guidance on the subject. They emphasised, finally, that retention of the records cast suspicion on persons who had been acquitted or discharged of crimes, thus implying that they were not wholly innocent. The retention thus resulted in stigma which was particularly detrimental to children as in the case of S. and to members of certain ethnic groups over-represented on the database.
(b) The Government
The Government submitted that any interference resulting from the retention of the applicants’ fingerprints, cellular samples and DNA profiles was justified under the second paragraph of Article 8. It was in accordance with the law as expressly provided for, and governed by section 64 of the PACE, which set out detailed powers and restrictions on the taking of fingerprints and samples and clearly stated that they would be retained by the authorities regardless of the outcome of the proceedings in respect of which they were taken. The exercise of the discretion to retain fingerprints and samples was also, in any event, subject to the normal principles of law regulating discretionary power and to judicial review.
The Government further stated that the interference was necessary and proportionate for the legitimate purpose of the prevention of disorder or crime and/or the protection of the rights and freedoms of others. It was of vital importance that law enforcement agencies took full advantage of available techniques of modern technology and forensic science in the prevention, investigation and detection of crime for the interests of society generally. They submitted that the retained material was of inestimable value in the fight against crime and terrorism and the detection of the guilty and provided statistics in support of this view. They emphasised that the benefits to the criminal-justice system were enormous, not only permitting the detection of the guilty but also eliminating the innocent from inquiries and correcting and preventing miscarriages of justice.
As at 30 September 2005, the National DNA database held 181,000 profiles from individuals who would have been entitled to have those profiles destroyed before the 2001 amendments. 8,251 of those were subsequently linked with crime-scene stains which involved 13,079 offences, including 109 murders, 55 attempted murders, 116 rapes, 67 sexual offences, 105 aggravated burglaries and 126 offences of the supply of controlled drugs.
The Government also submitted specific examples of use of DNA material for successful investigation and prosecution in some eighteen specific cases. In ten of these cases the DNA profiles of suspects matched some earlier unrelated crime-scene stains retained on the database, thus allowing successful prosecution for those earlier crimes. In another case, two suspects arrested for rape were eliminated from the investigation as their DNA profiles did not match the crime-scene stain. In two other cases the retention of DNA profiles of the persons found guilty of certain minor offences (disorder and theft) led to establishing their involvement in other crimes committed later. In one case the retention of a suspect’s DNA profile following an alleged immigration offence helped his extradition to the United Kingdom a year later when he was identified by one of his victims as having committed rape and murder. Finally, in four cases DNA profiles retained from four persons suspected but not convicted of certain offences (possession of offensive weapons, violent disorder and assault) matched the crime-scene stains collected from victims of rape up to two years later.
The Government contended that the retention of fingerprints, cellular samples and DNA profiles could not be regarded as excessive since they were kept for specific limited statutory purposes and stored securely and subject to the safeguards identified. Their retention was neither warranted by any degree of suspicion of the applicants’ involvement in a crime or propensity to crime nor directed at retaining records in respect of investigated alleged offences in the past. The records were retained because the police had already been lawfully in possession of them, and their retention would assist in the future prevention and detection of crime in general by increasing the size of the database. Retention resulted in no stigma and produced no practical consequence for the applicants unless the records matched a crime-scene profile. A fair balance was thus struck between individual rights and the general interest of the community and fell within the State’s margin of appreciation.
2. The Court’s assessment
(a) In accordance with the law
The Court recalls its well established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus be adequately accessible and foreseeable, that is, formulated with sufficient precision to enable the individual – if need be with appropriate advice – to regulate his conduct. For domestic law to meet these requirements, it must afford adequate legal protection against arbitrariness and accordingly indicate with sufficient clarity the scope of discretion conferred on the competent authorities and the manner of its exercise (see Malone v. the United Kingdom, 2 August 1984, §§ 66-68, Series A no. 82, BAILII: [1984] ECHR 10; Rotaru v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V,BAILII: [2000] ECHR 192 ; and Amann cited above, § 56).
The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed (Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 84, ECHR 2000-XI, with further references, 34 EHRR 55 ).
The Court notes that section 64 of the PACE provides that the fingerprints or samples taken from a person in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken (see paragraph 27 above). The Court agrees with the Government that the retention of the applicants’ fingerprint and DNA records had a clear basis in the domestic law. There is also clear evidence that these records are retained in practice save in exceptional circumstances. The fact that chief police officers have power to destroy them in such rare cases does not make the law insufficiently certain from the point of view of the Convention.
As regards the conditions attached to and arrangements for the storing and use of this personal information, section 64 is far less precise. It provides that retained samples and fingerprints must not be used by any person except for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution.
The Court agrees with the applicants that at least the first of these purposes is worded in rather general terms and may give rise to extensive interpretation. It reiterates that it is as essential, in this context, as in telephone tapping, secret surveillance and covert intelligence-gathering, to have clear, detailed rules governing the scope and application of measures, as well as minimum safeguards concerning, inter alia, duration, storage, usage, access of third parties, procedures for preserving the integrity and confidentiality of data and procedures for its destruction, thus providing sufficient guarantees against the risk of abuse and arbitrariness (see, mutatis mutandis, Kruslin v. France, 24 April 1990, §§ 33 and 35, Series A no. 176 A, BAILII: [1990] ECHR 10 ; Rotaru, cited above, § 57-59; Weber and Saravia v. Germany (dec.), no. 54934/00, ECHR 2006 …, BAILII: [2006] ECHR 1173; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75-77, 28 June 2007, BAILII: [2007] ECHR 533 ; Liberty and Others v. the United Kingdom, no. 58243/00, § 62-63, 1 July 2008, BAILII: [2008] ECHR 568 ). The Court notes, however, that these questions are in this case closely related to the broader issue of whether the interference was necessary in a democratic society. In view of its analysis in paragraphs 105-126 below, the Court does not find it necessary to decide whether the wording of section 64 meets the “quality of law” requirements within the meaning of Article 8 § 2 of the Convention.
(b) Legitimate aim
The Court agrees with the Government that the retention of fingerprint and DNA information pursues the legitimate purpose of the detection, and therefore, prevention of crime. While the original taking of this information pursues the aim of linking a particular person to the particular crime of which he or she is suspected, its retention pursues the broader purpose of assisting in the identification of future offenders.
(c) Necessary in a democratic society
(i) General principles
An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient”. While it is for the national authorities to make the initial assessment in all these respects, the final evaluation of whether the interference is necessary remains subject to review by the Court for conformity with the requirements of the Convention (see Coster v. the United Kingdom [GC], no. 24876/94, § 104, 18 January 2001, with further references, 33 EHRR 20 ).
A margin of appreciation must be left to the competent national authorities in this assessment. The breadth of this margin varies and depends on a number of factors including the nature of the Convention right in issue, its importance for the individual, the nature of the interference and the object pursued by the interference. The margin will tend to be narrower where the right at stake is crucial to the individual’s effective enjoyment of intimate or key rights (see Connors v. the United Kingdom, no. 66746/01, § 82, 27 May 2004, with further references, 40 EHRR 9 ). Where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State will be restricted (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 …, 46 EHRR 34 ). Where, however, there is no consensus within the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to how best to protect it, the margin will be wider (see Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-…, BAILII: [2007] ECHR 1050 ).
The protection of personal data is of fundamental importance to a person’s enjoyment of his or her right to respect for private and family life, as guaranteed by Article 8 of the Convention. The domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of this Article (see, mutatis mutandis, Z., cited above, § 95). The need for such safeguards is all the greater where the protection of personal data undergoing automatic processing is concerned, not least when such data are used for police purposes. The domestic law should notably ensure that such data are relevant and not excessive in relation to the purposes for which they are stored; and preserved in a form which permits identification of the data subjects for no longer than is required for the purpose for which those data are stored (see Article 5 of the Data Protection Convention and the preamble thereto and Principle 7 of Recommendation R(87)15 of the Committee of Ministers regulating the use of personal data in the police sector). The domestic law must also afford adequate guarantees that retained personal data was efficiently protected from misuse and abuse (see notably Article 7 of the Data Protection Convention). The above considerations are especially valid as regards the protection of special categories of more sensitive data (see Article 6 of the Data Protection Convention) and more particularly of DNA information, which contains the person’s genetic make-up of great importance to both the person concerned and his or her family (see Recommendation No. R(92)1 of the Committee of Ministers on the use of analysis of DNA within the framework of the criminal justice system).
The interests of the data subjects and the community as a whole in protecting the personal data, including fingerprint and DNA information, may be outweighed by the legitimate interest in the prevention of crime (see Article 9 of the Data Protection Convention). However, the intrinsically private character of this information calls for the Court to exercise careful scrutiny of any State measure authorising its retention and use by the authorities without the consent of the person concerned (see, mutatis mutandis, Z. cited above, § 96).
(ii) Application of these principles to the present case
The Court finds it to be beyond dispute that the fight against crime, and in particular against organised crime and terrorism, which is one of the challenges faced by today’s European societies, depends to a great extent on the use of modern scientific techniques of investigation and identification. The techniques of DNA analysis were acknowledged by the Council of Europe more than fifteen years ago as offering advantages to the criminal-justice system (see Recommendation R(92)1 of the Committee of Ministers, paragraphs 43-44 above). Nor is it disputed that the member States have since that time made rapid and marked progress in using DNA information in the determination of innocence or guilt.
However, while it recognises the importance of such information in the detection of crime, the Court must delimit the scope of its examination. The question is not whether the retention of fingerprints, cellular samples and DNA profiles may in general be regarded as justified under the Convention. The only issue to be considered by the Court is whether the retention of the fingerprint and DNA data of the applicants, as persons who had been suspected, but not convicted, of certain criminal offences, was justified under Article 8, paragraph 2 of the Convention.
The Court will consider this issue with due regard to the relevant instruments of the Council of Europe and the law and practice of the other Contracting States. The core principles of data protection require the retention of data to be proportionate in relation to the purpose of collection and insist on limited periods of storage (see paragraphs 41-44 above). These principles appear to have been consistently applied by the Contracting States in the police sector in accordance with the Data Protection Convention and subsequent Recommendations of the Committee of Ministers (see paragraphs 45-49 above).
As regards, more particularly, cellular samples, most of the Contracting States allow these materials to be taken in criminal proceedings only from individuals suspected of having committed offences of a certain minimum gravity. In the great majority of the Contracting States with functioning DNA databases, samples and DNA profiles derived from those samples are required to be removed or destroyed either immediately or within a certain limited time after acquittal or discharge. A restricted number of exceptions to this principle are allowed by some Contracting States (see paragraphs 47-48 above).
The current position of Scotland, as a part of the United Kingdom itself, is of particular significance in this regard. As noted above (see paragraph 36), the Scottish Parliament votedto allow retention of the DNA of unconvicted persons only in the case of adults charged with violent or sexual offences and even then, for three years only, with the possibility of an extension to keep the DNA sample and data for a further two years with the consent of a sheriff.
This position is notably consistent with Committee of Ministers’ Recommendation R(92)1, which stresses the need for an approach which discriminates between different kinds of cases and for the application of strictly defined storage periods for data, even in more serious cases (see paragraphs 43-44 above). Against this background, England, Wales and Northern Ireland appear to be the only jurisdictions within the Council of Europe to allow the indefinite retention of fingerprint and DNA material of any person of any age suspected of any recordable offence.
The Government lay emphasis on the fact that the United Kingdom is in the vanguard of the development of the use of DNA samples in the detection of crime and that other States have not yet achieved the same maturity in terms of the size and resources of DNA databases. It is argued that the comparative analysis of the law and practice in other States with less advanced systems is accordingly of limited importance.
The Court cannot, however, disregard the fact that, notwithstanding the advantages provided by comprehensive extension of the DNA database, other Contracting States have chosen to set limits on the retention and use of such data with a view to achieving a proper balance with the competing interests of preserving respect for private life. The Court observes that the protection afforded by Article 8 of the Convention would be unacceptably weakened if the use of modern scientific techniques in the criminal-justice system were allowed at any cost and without carefully balancing the potential benefits of the extensive use of such techniques against important private-life interests. In the Court’s view, the strong consensus existing among the Contracting States in this respect is of considerable importance and narrows the margin of appreciation left to the respondent State in the assessment of the permissible limits of the interference with private life in this sphere. The Court considers that any State claiming a pioneer role in the development of new technologies bears special responsibility for striking the right balance in this regard.
In the present case, the applicants’ fingerprints and cellular samples were taken and DNA profiles obtained in the context of criminal proceedings brought on suspicion of attempted robbery in the case of the first applicant and harassment of his partner in the case of the second applicant. The data were retained on the basis of legislation allowing for their indefinite retention, despite the acquittal of the former and the discontinuance of the criminal proceedings against the latter.
The Court must consider whether the permanent retention of fingerprint and DNA data of all suspected but unconvicted people is based on relevant and sufficient reasons.
Although the power to retain fingerprints, cellular samples and DNA profiles of unconvicted persons has only existed in England and Wales since 2001, the Government argue that their retention has been shown to be indispensable in the fight against crime. Certainly, the statistical and other evidence, which was before the House of Lords and is included in the material supplied by the Government (see paragraph 92 above) appears impressive, indicating that DNA profiles that would have been previously destroyed were linked with crime-scene stains in a high number of cases.
The applicants, however, assert that the statistics are misleading, a view supported in the Nuffield Report. It is true, as pointed out by the applicants, that the figures do not reveal the extent to which this “link” with crime scenes resulted in convictions of the persons concerned or the number of convictions that were contingent on the retention of the samples of unconvicted persons. Nor do they demonstrate that the high number of successful matches with crime-scene stains was only made possible through indefinite retention of DNA records of all such persons. At the same time, in the majority of the specific cases quoted by the Government (see paragraph 93 above), the DNA records taken from the suspects produced successful matches only with earlier crime-scene stains retained on the data base. Yet such matches could have been made even in the absence of the present scheme, which permits the indefinite retention of DNA records of all suspected but unconvicted persons.
While neither the statistics nor the examples provided by the Government in themselves establish that the successful identification and prosecution of offenders could not have been achieved without the permanent and indiscriminate retention of the fingerprint and DNA records of all persons in the applicants’ position, the Court accepts that the extension of the database has nonetheless contributed to the detection and prevention of crime.
The question, however, remains whether such retention is proportionate and strikes a fair balance between the competing public and private interests.
In this respect, the Court is struck by the blanket and indiscriminate nature of the power of retention in England and Wales. The material may be retained irrespective of the nature or gravity of the offence with which the individual was originally suspected or of the age of the suspected offender; fingerprints and samples may be taken – and retained – from a person of any age, arrested in connection with a recordable offence, which includes minor or non-imprisonable offences. The retention is not time-limited; the material is retained indefinitely whatever the nature or seriousness of the offence of which the person was suspected. Moreover, there exist only limited possibilities for an acquitted individual to have the data removed from the nationwide database or the materials destroyed (see paragraph 35 above); in particular, there is no provision for independent review of the justification for the retention according to defined criteria, including such factors as the seriousness of the offence, previous arrests, the strength of the suspicion against the person and any other special circumstances.
The Court acknowledges that the level of interference with the applicants’ right to private life may be different for each of the three different categories of personal data retained. The retention of cellular samples is particularly intrusive given the wealth of genetic and health information contained therein. However, such an indiscriminate and open-ended retention regime as the one in issue calls for careful scrutiny regardless of these differences.
The Government contend that the retention could not be considered as having any direct or significant effect on the applicants unless matches in the database were to implicate them in the commission of offences on a future occasion. The Court is unable to accept this argument and reiterates that the mere retention and storing of personal data by public authorities, however obtained, are to be regarded as having direct impact on the private-life interest of an individual concerned, irrespective of whether subsequent use is made of the data (see paragraph 67 above).
Of particular concern in the present context is the risk of stigmatisation, stemming from the fact that persons in the position of the applicants, who have not been convicted of any offence and are entitled to the presumption of innocence, are treated in the same way as convicted persons. In this respect, the Court must bear in mind that the right of every person under the Convention to be presumed innocent includes the general rule that no suspicion regarding an accused’s innocence may be voiced after his acquittal (see Asan Rushiti v. Austria, no. 28389/95, § 31, 21 March 2000, with further references, 33 EHRR 56 ). It is true that the retention of the applicants’ private data cannot be equated with the voicing of suspicions. Nonetheless, their perception that they are not being treated as innocent is heightened by the fact that their data are retained indefinitely in the same way as the data of convicted persons, while the data of those who have never been suspected of an offence are required to be destroyed.
The Government argue that the power of retention applies to all fingerprints and samples taken from a person in connection with the investigation of an offence and does not depend on innocence or guilt. It is further submitted that the fingerprints and samples have been lawfully taken and that their retention is not related to the fact that they were originally suspected of committing a crime, the sole reason for their retention being to increase the size and, therefore, the use of the database in the identification of offenders in the future. The Court, however, finds this argument difficult to reconcile with the obligation imposed by section 64(3) of the PACE to destroy the fingerprints and samples of volunteers at their request, despite the similar value of the material in increasing the size and utility of the database. Weighty reasons would have to be put forward by the Government before the Court could regard as justified such a difference in treatment of the applicants’ private data compared to that of other unconvicted people.
The Court further considers that the retention of the unconvicted persons’ data may be especially harmful in the case of minors such as the first applicant, given their special situation and the importance of their development and integration in society. The Court has already emphasised, drawing on the provisions of Article 40 of the UN Convention on the Rights of the Child of 1989, the special position of minors in the criminal-justice sphere and has noted in particular the need for the protection of their privacy at criminal trials (see T. v. the United Kingdom [GC], no. 24724/94, §§ 75 and 85, 16 December 1999, 30 EHRR 121 ). In the same way, the Court considers that particular attention should be paid to the protection of juveniles from any detriment that may result from the retention by the authorities of their private data following acquittals of a criminal offence. The Court shares the view of the Nuffield Council as to the impact on young persons of the indefinite retention of their DNA material and notes the Council’s concerns that the policies applied have led to the over-representation in the database of young persons and ethnic minorities, who have not been convicted of any crime (see paragraphs 38-40 above).
In conclusion, the Court finds that the blanket and indiscriminate nature of the powers of retention of the fingerprints, cellular samples and DNA profiles of persons suspected but not convicted of offences, as applied in the case of the present applicants, fails to strike a fair balance between the competing public and private interests and that the respondent State has overstepped any acceptable margin of appreciation in this regard. Accordingly, the retention at issue constitutes a disproportionate interference with the applicants’ right to respect for private life and cannot be regarded as necessary in a democratic society. This conclusion obviates the need for the Court to consider the applicants’ criticism regarding the adequacy of certain particular safeguards, such as too broad an access to the personal data concerned and insufficient protection against the misuse or abuse of such data.
Accordingly, there has been a violation of Article 8 of the Convention in the present case.
II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 8 OF THE CONVENTION
The applicants submitted that they had been subjected to discriminatory treatment as compared to others in an analogous situation, namely other unconvicted persons whose samples had still to be destroyed under the legislation. This treatment related to their status and fell within the ambit of Article 14, which had always been liberally interpreted. For the reasons set out in their submissions under Article 8, there was no reasonable or objective justification for the treatment, nor any legitimate aim or reasonable relationship of proportionality to the purported aim of crime prevention, in particular as regards the samples which played no role in crime detection or prevention. It was an entirely improper and prejudicial differentiation to retain materials of persons who should be presumed to be innocent.
The Government submitted that as Article 8 was not engaged Article 14 of the Convention was not applicable. Even if it were, there was no difference of treatment as all those in an analogous situation to the applicants were treated the same and the applicants could not compare themselves with those who had not had samples taken by the police or those who consented to give samples voluntarily. In any event, any difference in treatment complained of was not based on “status” or a personal characteristic but on historical fact. If there was any difference in treatment, it was objectively justified and within the State’s margin of appreciation.
The Court refers to its conclusion above that the retention of the applicants’ fingerprints, cellular samples and DNA profiles was in violation of Article 8 of the Convention. In the light of the reasoning that has led to this conclusion, the Court considers that it is not necessary to examine separately the applicants’ complaint under Article 14 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
The applicants requested the Court to award them just satisfaction for non-pecuniary damage and for costs and expenses.
A. Non-pecuniary damage
The applicants claimed compensation for non-pecuniary damage in the sum of GBP 5,000 each for distress and anxiety caused by the knowledge that intimate information about each of them had been unjustifiably retained by the State, and in relation to anxiety and stress caused by the need to pursue this matter through the courts.
The Government, referring to the Court’s case-law (in particular, Amann v. Switzerland, cited above), submitted that a finding of a violation would in itself constitute just satisfaction for both applicants and distinguished the present case from those cases where violations had been found as a result of the use or disclosure of the personal information (in particular, Rotaru v. Romania, cited above).
The Court recalls that it has found that the retention of the applicants’ fingerprint and DNA data violates their rights under Article 8. In accordance with Article 46 of the Convention, it will be for the respondent State to implement, under the supervision of the Committee of Ministers, appropriate general and/or individual measures to fulfil its obligations to secure the right of the applicants and other persons in their position to respect for their private life (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000 VIII, 35 EHRR 12 , and Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 120, ECHR 2002 VI, 35 EHRR 18 ). In these circumstances, the Court considers that the finding of a violation, with the consequences which will ensue for the future, may be regarded as constituting sufficient just satisfaction in this respect. The Court accordingly rejects the applicants’ claim for non-pecuniary damage.
B. Costs and expenses
The applicants also requested the Court to award GBP 52,066.25 for costs and expenses incurred before the Court and attached detailed documentation in support of their claim. These included the costs of the solicitor (GBP 15,083.12) and the fees of three counsel (GBP 21,267.50, GBP 2,937.50 and GBP 12,778.13 respectively). The hourly rates charged by the lawyers were as follows: GBP 140 in respect of the applicants’ solicitor (increased to GBP 183 as from June 2007) and GBP 150, GBP 250 and GBP 125 respectively in respect of the three counsel.
The Government qualified the applicants’ claim as entirely unreasonable. They submitted in particular that the rates charged by the lawyers were excessive and should be reduced to no more than two-thirds of the level claimed. They also argued that no award should be made in respect of the applicants’ decision to instruct a fourth lawyer at a late stage of the proceedings as it had led to the duplication of work. The Government concluded that any cost award should be limited to GBP 15,000 and in any event, to no more than GBP 20,000.
The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Roche v. the United Kingdom [GC], no. 32555/96, § 182, ECHR 2005 X, 42 EHRR 30 ).
On the one hand, the present applications were of some complexity as they required examination in a Chamber and in the Grand Chamber, including several rounds of observations and an oral hearing. The application also raised important legal issues and questions of principle requiring a large amount of work. It notably required an in-depth examination of the current debate on the issue of retention of fingerprint and DNA records in the United Kingdom and a comprehensive comparative research of the law and practice of other Contracting States and of the relevant texts and documents of the Council of Europe.
On the other hand, the Court considers that the overall sum of GBP 52,066.25 claimed by the applicants is excessive as to quantum. In particular, the Court agrees with the Government that the appointment of the fourth lawyer in the later stages of the proceedings may have led to a certain amount of duplication of work.
Making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court awards the sum of EUR 42,000 in respect of costs and expenses, less the amount of EUR 2,613.07 already paid by the Council of Europe in legal aid.
C. Default interest
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 8 of the Convention;
Holds that it is not necessary to examine separately the complaint under Article 14 of the Convention;
Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicants;
Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 42,000 (forty two thousand euros) in respect of costs and expenses (inclusive of any VAT which may be chargeable to the applicants), to be converted into pounds sterling at the rate applicable at the date of settlement, less EUR 2,613.07 already paid to the applicants in respect of legal aid;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 December 2008.
Michael O’Boyle Jean-Paul Costa
Deputy Registrar President
1 DNA stands for deoxyribonucleic acid ; it is the chemical found in virtually every cell in the body and the genetic information therein, which is in the form of a code or language, determines physical characteristics and directs all the chemical processes in the body. Except for identical twins, each person’s DNA is unique. DNA samples are cellular samples and any sub-samples or part samples retained from these after analysis. DNA profiles are digitised information which is stored electronically on the National DNA Database together with details of the person to whom it relates.
1 The Nuffield Council on Bioethics is an independent expert body composed of clinicians, lawyers, philosophers, scientists and theologians established by the Nuffield Foundation in 1991. The present report was published on 18 September 2007 under the following title “The forensic use of bioinformation: ethical issues”
1 Allele is one of two or more alternative forms of a particular gene. Different alleles may give rise to different forms of the characteristic for which the gene codes (World Encyclopedia. Philip’s, 2008. Oxford Reference Online. Oxford University Press).
1 The law and practice in Ireland are presently governed by the Criminal Justice (Forensic Evidence) Act 1990. A new Bill has been approved by the Government with a view to extending the use and storage of DNA information in a national database. The Bill has not yet been approved by Parliament.
2 The Legislative Decree of 30 October 2007 establishing a national DNA database was approved by the Italian Government and the Senate. However, the Decree eventually expired without having been formally converted into a Statute as a mistake in the drafting was detected. A corrected version of the decree is expected to be issued in 2008.
VALENZUELA CONTRERAS v. SPAIN – 27671/95
[1998] ECHR 70 (1999) 28 EHRR 483, [1998] ECHR 70, [1998] HRCD 744, 28 EHRR 483Judgment delivered by a Chamber
Spain – monitoring of telephone line in connection with criminal proceedings against subscriber
I. ARTICLE 6 OF THE CONVENTION
Compass of case delimited by Commission’s decision on admissibility – Court had no jurisdiction to revive issues declared inadmissible.
Conclusion: no jurisdiction (unanimously).
II. ARTICLE 8 OF THE CONVENTION
A. Applicability
Telephone calls from a person’s home came within notions of “private life” and “correspondence” referred to in Article 8 § 1 – point not disputed.
B. Compliance
1. General principles
Recapitulation of Court’s case-law.
2. Application of those principles in instant case
(a) Whether there had been an interference
Tapping of applicant’s telephone line constituted “interference by a public authority” in exercise of right to respect for his private life and correspondence – point not disputed.
(b) Was the interference justified?
(i) Was the interference “in accordance with the law”?
Not contested that there was legal basis in Spanish law.
No doubt in instant case that law was accessible.
Foreseeability of law: telephone tappings constituted serious interference with right to respect for private life and correspondence – had to be based on an especially precise “law”.
In sphere of monitoring telephone communications guarantees stating extent of authorities’ discretion and manner in which it was to be exercised had to be set out in detail in domestic law in order for it to have binding force which circumscribed judges’ discretion in application of such measures – Spanish law did not indicate with sufficient certainty at material time extent of authorities’ discretion in domain concerned or way in which it was to be exercised – evolution in legislation and case-law on subject had not begun until after order to monitor applicant’s telephone line had been made.
Conclusion: violation (unanimously).
(ii) Aim of the interference and the need for it
Unnecessary to consider that issue.
III. ARTICLE 50 OF THE CONVENTION
A. Pecuniary damage: applicant unable to prove causal link between tapping of his telephone and alleged damage – claim dismissed.
B. Costs and expenses: claim allowed in full.
Conclusion: respondent State to pay applicant specified sum in respect of costs and expenses (unanimously).
COURT’S CASE-LAW REFERRED TO
6.9.1978, Klass and Others v. Germany; 2.8.1984, Malone v. the United Kingdom; 24.4.1990, Kruslin v. France and Huvig v. France; 28.9.1995, Masson and Van Zon v. the Netherlands; 26.3.1996, Leutscher v. the Netherlands; 25.6.1997, Halford v. the United Kingdom; 25.3.1998, Kopp v. Switzerland
In the case of Valenzuela Contreras v. Spain[2],
The European Court of Human Rights, sitting, in accordance with Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of Rules of Court A[3], as a Chamber composed of the following judges:
Mr R. BERNHARDT, President,
Mrs E. PALM,
Mr A.N. LOIZOU,
Mr J.M. MORENILLA,
Sir John FREELAND,
Mr A.B. BAKA,
Mr L. WILDHABER,
Mr J. CASADEVALL,
Mr V. BUTKEVYCH,
and also of Mr H. PETZOLD, Registrar, and Mr P.J. MAHONEY, Deputy Registrar,
Having deliberated in private on 28 March and 30 June 1998,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 29 May 1997, within the three-month period laid down by Article 32 § 1 and Article 47 of the Convention. It originated in an application (no. 27671/95) against the Kingdom of Spain lodged with the Commission under Article 25 by a Spanish national, Mr Cosme Valenzuela Contreras, on 2 May 1995.
The Commission’s request referred to Articles 44 and 48 and to the declaration whereby Spain recognised the compulsory jurisdiction of the Court (Article 46). The object of the request was to obtain a decision as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 of the Convention.
2. In response to the enquiry made in accordance with Rule 33 § 3 (d) of Rules of Court A, the applicant stated that he wished to take part in the proceedings and designated the lawyer who would represent him (Rule 30). The lawyer was given leave by the President to use the Spanish language (Rule 27 § 3).
3. The Chamber to be constituted included ex officio Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43 of the Convention), and Mr R. Ryssdal, the President of the Court (Rule 21 § 4 (b)). On 27 August 1997, in the presence of the Registrar, the President drew by lot the names of the other seven members, namely Mr B. Walsh, Mrs E. Palm, Mr A.N. Loizou, Mr A.B. Baka, Mr L. Wildhaber, Mr J. Casadevall and Mr V. Butkevych (Article 43 in fine of the Convention and Rule 21 § 5). Subsequently Mr R. Bernhardt, the Vice-President of the Court, replaced Mr Ryssdal, who had died on 18 February 1998 (Rule 21 § 6, second sub-paragraph), and Sir John Freeland, substitute judge, replaced Mr Walsh, who had died on 9 March 1998 (Rule 22 § 1).
4. As President of the Chamber (Rule 21 § 6), Mr Ryssdal, acting through the Registrar, had consulted the Agent of the Spanish Government (“the Government”), the applicant’s lawyer and the Delegate of the Commission on the organisation of the proceedings (Rules 37 § 1 and 38). Pursuant to the order made in consequence on 30 September 1997, the Registrar received the Government’s and the applicant’s memorials on 15 December 1997. On 19 January 1998 the Secretary to the Commission informed the Registrar that the Delegate did not wish to reply in writing.
5. On 19 January 1998 the Commission produced the file on the proceedings before it, as requested by the Registrar on the President’s instructions.
6. In accordance with the decision of the President, who had also given the Agent of the Government leave to address the Court in Spanish (Rule 27 § 2), the hearing took place in public in the Human Rights Building, Strasbourg, on 26 March 1998. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. BORREGO BORREGO, Head of the Legal Department
for the European Commission and Court of
Human Rights, Ministry of Justice, Agent;
(b) for the Commission
Mr M.A. NOWICKI, Delegate;
(c) for the applicant
Mr J.-C. RUBIO MORENO, of the Madrid Bar, Counsel.
The Court heard addresses by Mr Nowicki, Mr Rubio Moreno and Mr Borrego Borrego.
AS TO THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant is a Spanish citizen and was born in 1952. He is the deputy head of personnel of the W. company.
A. Background to the case and the inquiry
8. On 12 November 1984, following a complaint lodged by Mrs M., an employee of the W. company, with Madrid investigating judge no. 31 against a person or persons unknown in respect of insulting and threatening telephone calls and letters she had received, a criminal investigation (diligencias previas) was started. On 6 February 1985 Mrs M.’s fiancé, Mr R., lodged a complaint against a person or persons unknown for the same offence.
9. On 8 January and 19 February 1985, the investigating judge made orders under Article 18 § 3 of the Constitution for Mrs M.’s and Mr R.’s telephone lines to be tapped for a month, as they had requested when making their statement. Several suspect calls made from the W. company and from telephone boxes were intercepted.
10. On 18 February and 25 March 1985 respectively the monitoring ceased.
11. On 29 March 1985 Mrs M. gave the investigating judge the names of the five people, including the applicant, who had access to the telephone at the W. company from which some of the suspect calls had been made.
That same day three other people were summonsed to appear. The W. company was asked to provide information about the offices in which the telephones concerned were located and the people having access to them.
12. On 30 April 1985 the investigating judge made a further order for Mrs M.’s and Mr R.’s telephone lines to be tapped, on this occasion from 1 to 31 May 1985. He also ordered an analysis of the typeface of the anonymous letters containing threats against Mrs M. (in order to determine the make of typewriter used) and of photographs enclosed with some of the letters. In addition, he had the saliva residue and the fingerprints on the envelopes examined.
13. On 7 June 1985 the cassette recording of the calls made on the monitored lines, some of which showed that Mrs M. had been subjected to threats and insults, was delivered to the investigating judge.
14. On 19 November 1985 the investigating judge made an order under Article 18 § 3 of the Constitution (see paragraph 29 below) and Chapter VIII of Volume II of the Code of Criminal Procedure “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” (see paragraph 30 below), for the monitoring of the private telephone lines of S. and of Mr Valenzuela, the head and deputy head of personnel of the company where the applicant worked, for a period of one month commencing on 26 November 1985. The applicant was considered to be the prime suspect, firstly, because most of the calls were being made from the W. company, where he worked and where, as deputy head of personnel, he had access to the company’s staff files and, secondly, because he had previously had a relationship with Mrs M. The investigating judge’s order read as follows:
“An application has been made for an order for the monitoring of telephone lines nos. 641 29 25 and 795 22 00, of Cosme Valenzuela Contreras and Mr [S.] respectively, who reside in this town, Mr Valenzuela Contreras at Avda. del Oeste no. 41 de Alorcón and Mr [S.] in H. Street, in connection with a police investigation currently under way into certain offences.
It is implicit in what has been said by the police that reliable evidence exists to suggest that information concerning the commission of an offence may be obtained by monitoring telephone lines nos. 641 29 25 and 795 22 00 belonging to Cosme Valenzuela Contreras and Mr [S.] respectively; it is appropriate to grant the requested application authorising the monitoring, in accordance with Article 18 § 3 of the Constitution as in force. It will be carried out by agents of the National Telephone Company referred to above.
Having considered, in addition to the Article cited above, Chapter VIII of Volume [II] of the Code of Criminal Procedure and other provisions of general application,
[The judge] orders that the telephone lines nos. 641 29 25 and 795 22 00 of Cosme Valenzuela Contreras and Mr [S.] respectively shall be monitored by staff of the National Telephone Company of Spain for a period of one month starting from today; at the end of that period they shall report their findings.
…”
15. On 10 December 1985 police headquarters at the Ministry of the Interior informed Madrid investigating judge no. 1 that the monitoring of Mr [S.]’s line had not revealed anything suspect, no suspicious call or conversation having been recorded. Conversely, the monitoring of Mr Valenzuela’s line had shown that a number of calls had been made from his telephone to Mrs M., her fiancé and their close relatives. However, the caller had hung up as soon as the telephone was answered.
On the same day, after further insulting letters had been sent to Mrs M., police headquarters applied for a warrant from the judge to carry out a search of Mr Valenzuela’s home.
16. Owing to a breakdown in the system, the applicant’s telephone line ceased to be tapped on 20 December 1985. The original cassettes containing the recordings were delivered to the investigating judge and included in the court file that was available for inspection and comment by the parties.
17. On 27 December 1985 the applicant himself applied to Madrid investigating judge no. 2, complaining that he had received threatening telephone calls. On 17 June 1986 the applicant requested the judge to order the monitoring of the applicant’s own telephone line; that measure proved fruitless. On 14 June 1988 the judge made a provisional discharge order (sobreseimiento provisional).
18. On 9 December 1985 and 13 January 1986 police headquarters confirmed before the investigating judge that twenty-two calls had been made from the applicant’s telephone while it was being tapped, three to Mrs M.’s home, eight to Mr R.’s home, two to Mr R.’s aunt and nine to his superior.
19. On 26 January 1986 the public prosecutor applied for criminal proceedings (sumario) to be brought against Mr Valenzuela and, if appropriate, Mr S., for offences of proffering grave insults and making threats.
20. On 25 February 1986 Madrid investigating judge no. 31 ordered that the applicant’s home and the head office of the W. company be searched.
21. On 18 April 1986 he decided to institute criminal proceedings against Mr Valenzuela. In an order (auto de procesamiento) of 18 April 1986 he charged the applicant with proffering grave insults and making threats under Articles 457, 458 §§ 2, 3 and 4, 459, 463 and 493 § 2 of the Criminal Code.
22. On 26 December 1990 Madrid investigating judge no. 27, to whom the case had been assigned on 2 January 1990, closed the investigation and committed the applicant for trial before the Madrid Audiencia provincial.
B. Proceedings before the Madrid Audiencia provincial
23. On 25 June and 8 July 1991 the public prosecutor, and Mrs M. and Mr R. as private prosecutors (acusadores particulares), filed provisional submissions.
24. On 7 May 1992 the applicant argued that the monitoring of his telephone line and searches of his house constituted breaches of Articles 18 and 24 of the Constitution (see paragraph 29 below).
25. On 8 May 1992 the Madrid Audiencia provincial convicted the applicant of making threats by letter and on the telephone against Mrs M. and Mr R., her fiancé, and their respective families, both at their homes and at work. It sentenced him to four months’ imprisonment, imposed a number of fines and ordered him to pay Mrs M. compensation.
26. The Audiencia provincial found that neither the searches nor the monitoring had been decisive in establishing the applicant’s guilt. The monitoring had revealed that some of the calls from his home telephone had been made to Mrs M.’s telephone number and that most of the calls complained of had been made from the company where both Mrs M. and the applicant worked. Nevertheless, it had not proved possible to determine the identity of the person making the calls because he had hung up as soon as the telephone was answered.
C. Proceedings before the Supreme Court
27. The applicant lodged an appeal on points of law, which the Supreme Court dismissed on 19 March 1994. It held with regard to the telephone tapping that, even if the court order allowing the applicant’s telephone line to be monitored had been couched in general terms, the evidence thereby obtained had not been the only evidence on which the trial court had relied in convicting him and, in any event, the threats had also been made in writing.
D. The amparo appeal to the Constitutional Court
28. The applicant then filed an amparo appeal with the Constitutional Court in which he relied on the principle of the presumption of innocence, on the right to respect for his private and family life and on the confidentiality of telephone communications (Articles 24 and 18 of the Constitution – see paragraph 29 below). That appeal was dismissed on 16 November 1994 on the following grounds:
“… Contrary to what is said by the applicant, there has been no breach of his right to make telephone communications in confidence in the present case, since the monitoring of his telephone line had previously been authorised in a reasoned court order made under Article 579 § 3 of the Code of Criminal Procedure. It must nevertheless be noted that the monitoring failed to produce any decisive results enabling the conclusion to be reached that Mr Valenzuela had been guilty of making the threats of which he was suspected, inasmuch as the only finding was that frequent calls in which the caller had remained silent had been made from his home to the home of the person receiving the threats, as the caller had hung up as soon as [the victim] answered. The decisive factor in this respect [the finding that the applicant was guilty] was the evidence as a whole including the amparo appellant’s recent relationship with [Mrs M.], the fact that he was the deputy head of personnel in the company where she worked, the fact that it had been shown that some of the calls had been made from that company’s premises, the fact that the photographs enclosed with some of the anonymous letters were from the company’s archives to which only members of the personnel department had access, [Mr Valenzuela’s] reactions during the oral hearing, etc. That evidence, which was properly reviewed by the [Audiencia provincial] in a clearly reasoned judgment that was not illogical, may be considered to have been sufficient to rebut the presumption that the appellant was innocent…”
II. RELEVANT DOMESTIC LAW
A. The Constitution
29. The relevant provisions of the Constitution read as follows:
Article 10 § 2
“The rules relating to the fundamental rights and the freedoms recognised under the Constitution shall be construed in accordance with the Universal Declaration of Human Rights and the international treaties and agreements concerning the same subject matter that have been ratified by Spain.”
Article 18 § 3
“Communications, particularly postal, telegraphic and telephone communications, shall be confidential unless the court decides otherwise.”
Article 96
“Properly concluded international treaties shall form part of the domestic legal order once they have been published in Spain…”
B. The Code of Criminal Procedure
1. Before Implementing Law no. 4/1988 of 25 May 1988 came into force
30. The relevant provisions of Chapter VIII of Volume II of the Code of Criminal Procedure “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” were as follows:
Article 579
“A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified.”
Article 581
“The officer who seizes the correspondence shall immediately hand it to the investigating judge.”
Article 583
“The decision, which shall be reasoned, authorising the seizure and inspection of correspondence … shall specify which correspondence is to be seized or inspected…”
Article 586
“The procedure shall take place by the judge himself opening the correspondence…”
Article 588
“The fact that the correspondence has been opened shall be noted in a record…
The record thereof shall be signed by the investigating judge, the registrar and any other persons present.”
2. Since Implementing Law no. 4/1988 of 25 May 1988 came into force
31. Implementing Law no. 4/1988 amended two Articles of Chapter VIII of Volume II (see paragraph 30 above), namely Articles 553 and 579. Of these, only Article 579 is relevant in the present case and it now provides:
Article 579
“1. A court may authorise the seizure, opening and examination of private postal and telegraphic correspondence sent or received by a person charged if there is reason to believe that facts or circumstances material to the case may thereby be uncovered or verified.
2. A court may also authorise, in a reasoned decision, the monitoring of the telephone calls of a person charged if there is evidence to show that facts or circumstances material to the case may thereby be uncovered or verified.
3. Likewise, a court may, in a reasoned decision, authorise for a maximum renewable period of three months the monitoring of the postal, telegraphic and telephonic communications of persons reasonably believed to have committed an offence and of communications made for criminal ends.
…”
C. The case-law
32. In its judgment no. 114/1984 of 29 November 1984 the Constitutional Court held that the concept of “confidentiality” did not cover just the content of communications, but also other aspects of them such as the subjective identity of the people communicating.
33. In its judgment of 21 February 1991 the Supreme Court noted that the legislative amendment made by Implementing Law no. 4/1988 of 25 May 1988, bringing in the new wording of Article 579 of the Code of Criminal Procedure, was not perfect. The court said that cassette recordings of telephone conversations should be put at the disposal of the judge with an accurate transcript, which was to be checked by the registrar for use at the trial if appropriate. It added that “if the conditions laid down by Article 579 are satisfied, if the judge has reviewed the content of the evidence so obtained and has given leave for it to be used at the trial”, evidence obtained from telephone tapping may be considered admissible.
34. In a decision (auto) of 18 June 1992 the Supreme Court construed the Spanish legislation on the admissibility of evidence obtained by telephone tapping as it stood after Implementing Law no. 4/1988 of 25 May 1988 had come into force (see paragraphs 29 and 31 above). It stated that “the legislature [had] not specified any limitations according to the nature of the possible offence or the sentence it carried” and emphasised that the deficiencies, inadequacies and vagueness of that legislation needed to be rectified by the case-law of the domestic courts and of the European Court of Human Rights.
In the light of the latter Court’s case-law, the Supreme Court reached the following conclusions in its decision:
“In summary, the violations that render evidence obtained from telephone tapping inadmissible and determine its effects are as follows:
(1) Lack of evidence. Lack of sufficient reasoning
Lack … of evidence capable, in the judge’s view, of justifying a measure restricting fundamental rights to the extent telephone tapping does; mere suspicion on the part of the police, which in principle serves as the basis for the court’s decision, cannot suffice.
(2) Lack of supervision
There was an almost total lack of any form of judicial supervision of the actual monitoring of the telephone concerned, which must necessarily be effected in compliance with the proportionality principle, which indeed can only be established through the reasoning, by, for example, listening to conversations recorded over reasonable periods in order for progress in the investigation (in this case a police investigation) to be checked and a decision taken as to whether or not expressly to extend the measure/surveillance – which, moreover, should not be for more than a reasonable period – in accordance with the principles laid down by the Code of Criminal Procedure.
(3) Periodic review. Effects
Once the conversations have been recorded on the tapes, the judge must periodically, in the manner he deems appropriate in the light of all the circumstances, examine them in the presence of the court registrar and, after hearing the recorded voices, decide on the proper course of action and, if appropriate, order that the monitoring continue, in which case he determines the appropriate guidelines to be followed by those responsible for implementing the measure.
If he orders that the measure should cease, the person or persons affected by that measure must be informed of the operation that has ended … so that they may henceforth take such action as they deem appropriate…
Only in exceptional cases can the measure remain secret until the end of the investigation so as not to frustrate the legitimate interest in pursuing it … but it must cease to remain secret once the investigation has ended…
(4) Divergence between the monitoring and the investigation
… There is a violation of the right to private life or, even more simply, the confidentiality of communications in general and of telephone communications in particular where …, during the course of the originally authorised monitoring, it appears possible that one or more new offences may have been committed. At that point … the police must, without delay, immediately inform the investigating judge who authorised/ordered the monitoring so that he may consider the question of his jurisdiction and the requirement of proportionality… A blanket authorisation may not be given; nor, without a fresh, express authority from the judge, can the measure/surveillance continue if the new presumed offence revealed on the telephone
is found to be independent of the offence covered by the original authorisation. Such situations, if uncontrollable and not directly supervised by the judge, cause or are apt to cause a total failure to comply with the proportionality principle. It will never be known whether or not that principle was complied with in the present case…
(5) Production of copies rather than originals
There will also be a violation where the measure fails to comply with the Constitution and all the legislation (Article 579 of the Code of Criminal Procedure). The fact that the tape recordings produced to the court were copies, not originals, and moreover represented a selection made by the police without any judicial supervision, is a serious violation of the system. … as the judge, in the registrar’s presence, must select, in the manner he deems appropriate, what is relevant to the investigation ordered by him while the remaining recordings must be kept in the registrar’s custody, thereby precluding any undesired or undesirable knowledge of conversations beyond the scope of the decision to monitor. The judge must order the immediate cessation of the measure when it is no longer relevant to the legitimate aim of establishing the commission of a serious offence, whose gravity must always be proportionate to what is, in principle, an intolerable interference with private life…
(6) Finding of proportionality
On that basis, it is necessary to consider whether or not the preventive measures used were proportionate to the aim pursued… The judge, who is the essential guarantor of fundamental rights and public freedoms, must consider each offence in the light of all the circumstances and decide whether the legitimate interests in investigation, prosecution and, where appropriate, conviction warrant in a given case the sacrifice of legal interests as important as the dignity, privacy and freedom of the individual…
(7) Determination of the measure and its limits
… The judicial authority must state what form the measure is to take and ensure that it is implemented with the least possible harm to the person affected by it…”
PROCEEDINGS BEFORE THE COMMISSION
35. Mr Valenzuela Contreras applied to the Commission on 2 May 1995. He relied on Article 6 § 1 and Article 8 of the Convention, complaining that he had not had a fair hearing in that his guilt had not been established by lawful means and that the monitoring of his telephone line had infringed his right to respect for his private life.
36. On 18 October 1996 the Commission declared the application (no. 27671/95) admissible as regards the applicant’s complaint under Article 8 and inadmissible as to the remainder. In its report of 11 April 1997 (Article 31), it expressed the opinion that there had been a violation of Article 8 (eleven votes to six). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[4].
FINAL SUBMISSIONS TO THE COURT
37. In their memorial the Government invited the Court to hold that the monitoring of the applicant’s telephone line had not constituted a violation of Article 8 of the Convention.
38. The applicant requested the Court to hold that there had been breaches of Articles 6 and 8 of the Convention and to award him just satisfaction under Article 50.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
39. In his memorial to the Court, the applicant repeated the complaint he had submitted to the Commission under Article 6 of the Convention, which the Commission had declared inadmissible (see paragraphs 35 and 36 above). He affirmed that the only basis for his conviction had been the evidence obtained from monitoring his telephone and that without it, his guilt could not have been established.
40. However, since the compass of the case before it is delimited by the Commission’s decision on admissibility, the Court has no jurisdiction to revive issues declared inadmissible (see, among other authorities, the Masson and Van Zon v. the Netherlands judgment of 28 September 1995, Series A no. 327-A, p. 16, § 40, and the Leutscher v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, p. 434, § 22).
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
41. The applicant maintained that the interception of his telephone communications amounted to a violation of Article 8 of the Convention, which provides:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.”
A. Applicability of Article 8
42. The Court considers that it is clear from its case-law that telephone calls from a person’s home come within the notions of “private life” and “correspondence” referred to in Article 8 (see the following judgments: Klass and Others v. Germany of 6 September 1978, Series A no. 28, p. 21, § 41, Malone v. the United Kingdom of 2 August 1984, Series A no. 82, p. 30, § 64, and Kruslin v. France and Huvig v. France of 24 April 1990, Series A no. 176-A and B, p. 20, § 26, and p. 52, § 25, respectively). Indeed, the point was not disputed.
B. Compliance with Article 8
1. Arguments of those appearing before the Court
(a) The applicant
43. The applicant’s main contention was that the interception of his telephone conversations amounted to an unjustified interference in the exercise of his right to respect for his private life, in breach of Article 8. He argued that the statutory basis for the measure in issue was not sufficiently foreseeable and clear and that the existence of a general and unrestricted system for monitoring communications was contrary to Article 8, especially as there had been no judicial supervision in the instant case. He referred to the Court’s judgment in the Malone case (judgment cited above, pp. 32–33, § 68) and said that the “law”, namely the Spanish Constitution, which was of direct application as no other law was applicable in the present case, did not define “the extent
of any such power or the manner of its exercise with a degree of clarity that – having regard to the legitimate aim pursued – was sufficient to give the individual adequate protection against arbitrary interference”.
He submitted that the tapping of the telephones did not satisfy the requirements laid down by the Court’s case-law, in particular in that the investigating judge had not given sufficient reasons in his order of 19 November 1985 for requiring the applicant’s telephone line to be monitored. The applicant emphasised that that order was akin to a “standard-form decision”, since it contained no mention of the facts on which it was based or of the reasons that could have justified such a measure; furthermore, the measure was disproportionate to the seriousness of the offence.
(b) The Government
44. In the Government’s submission, the interference in the applicant’s private life was in accordance with the law (see Article 18 of the Constitution and the provisions of the Code of Criminal Procedure that were applicable under a wide construction of Article 579 of the Code of Criminal Procedure, before its amendment in 1988) and justified by the need to establish that the offence in question had been committed. They also pointed out that the provisions relating to fundamental rights are to be construed in the light of the Universal Declaration of Human Rights and the international treaties which Spain had ratified on the subject (see paragraph 29 above).
The order for the monitoring of the applicant’s telephone line had been made by the investigating judge in a properly reasoned decision in connection with criminal proceedings brought for insulting and threatening telephone calls and letters. The measure had been necessary in order to discover or to verify facts relevant to the proceedings. The monitoring had been limited in time and the cassette recordings had been transcribed and made available for inspection and comment by both parties. Moreover, the telephone numbers and the names of the subscribers to which the measure related were mentioned in the order, as were the statutory provisions on which the decision to intercept communications was based.
The Government referred in particular to a decision (auto) of the Supreme Court of 18 June 1992 (see paragraph 34 above) that had been delivered two years before the Supreme Court’s judgment of 19 March 1994 and the Constitutional Court’s decision of 16 November 1994 (see paragraphs 27 and 28 above), in which all the necessary conditions applicable under Spanish law, as established by the Court’s case-law, were set out.
(c) The Commission
45. Before the Court, the Delegate of the Commission pointed out that at the material time the Spanish system governing the monitoring of telephones did not provide adequate safeguards; it did not indicate with the clarity and precision required by the Convention the scope and manner of exercise of the power conferred on the authorities. Although the legislation and, in particular, the case-law in that sphere had evolved in a very positive way, that evolution had not begun until several years after the order in issue had been made.
2. The Court’s assessment
(a) General principles
46. The following principles relevant in the instant case have been established by the Court in its case-law:
(i) The interception of telephone conversations constitutes an interference by a public authority in the right to respect for private life and correspondence. Such an interference will be in breach of Article 8 § 2 unless it is “in accordance with the law”, pursues one or more legitimate aims under paragraph 2 and, in addition, is “necessary in a democratic society” to achieve those aims (see the Kopp v. Switzerland judgment of 25 March 1998, Reports 1998- II, p. 539, § 50).
(ii) The words “in accordance with the law” require firstly that the impugned measure should have some basis in domestic law. However, that expression does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law. The expression thus implies that there must be a measure of protection in domestic law against arbitrary interference by public authorities with the rights safeguarded by paragraph 1 (see the Malone judgment cited above, p. 32, § 67). From that requirement stems the need for the law to be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him (see the Kruslin judgment cited above p. 20, § 27, and the Kopp judgment cited above, p. 540, § 55).
(iii) Especially where a power of the executive is exercised in secret the risks of arbitrariness are evident. In the context of secret measures of surveillance or interception by public authorities, the requirement of foreseeability implies that the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to take any such
secret measures (see the Malone judgment cited above, pp. 31–32, §§ 66–67, the Kruslin judgment cited above, pp. 22–23, § 30, the Halford v. the United Kingdom judgment of 25 June 1997, Reports 1997-III, p. 1017, § 49, and the Kopp judgment cited above, p. 541, § 64). It is essential to have clear, detailed rules on the subject, especially as the technology available for use is constantly becoming more sophisticated (see the Kruslin judgment cited above, p. 23, § 33, the Huvig judgment cited above, p. 55, § 32, and the Kopp judgment cited above, pp. 542–43, § 72).
(iv) The Kruslin and Huvig judgments mention the following minimum safeguards that should be set out in the statute in order to avoid abuses of power: a definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations, the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence and the circumstances in which recordings may or must be erased or the tapes destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court (loc. cit. p. 24, § 35, and p. 56, § 34, respectively).
(b) Application of these principles in the instant case
(i) Whether there has been an interference
47. The tapping of Mr Valenzuela Contreras’s telephone line between 26 November and 20 December 1985 (see paragraphs 14 and 16 above) constitutes an “interference by a public authority” within the meaning of Article 8 § 2 in the applicant’s exercise of his right to respect for his private life and correspondence. Indeed, that point was not disputed. Nor is it decisive in that regard that, as the Government intimated, only a “metering” system was used (see the Malone judgment cited above, p. 38, § 87).
(ii) Was the interference justified?
48. It is necessary to examine whether that interference satisfied the requirements of paragraph 2 of Article 8.
(a) Was the interference “in accordance with the law”?
49. It is not contested that there was a legal basis in Spanish law for such a measure. The Court therefore confines itself to noting that Article 18 § 3 of the Constitution, on which the investigating judge principally based the order for the applicant’s telephone line to be monitored, provides that “communications, particularly postal, telegraphic and telephone communications, should be confidential unless the court decides otherwise” (see paragraphs 14 and 29 above).
50. The second requirement resulting from the phrase “in accordance with the law”, namely that the law be accessible, does not give rise to any problem in the present case.
51. That is not true of the third requirement, namely that the law be foreseeable as regards the meaning and nature of the applicable measures.
52. The Government submitted that the relevant statutory provisions and the case-law of the Supreme Court and the Constitutional Court taken as a whole (see paragraphs 29, 30 and 32–34 above) warranted the conclusion that the telephone tapping ordered in the present case satisfied the foreseeability requirement as laid down by the European Court.
53. The Court must therefore assess the quality of the legal rules that were applied in Mr Valenzuela Contreras’s case.
54. It notes, firstly, that the applicant’s telephone line was tapped under Article 18 § 3 of the Constitution, which was the only provision allowing, at the time the order for the telephone tapping was made, restrictions on the right to confidentiality of telephone communications (see paragraph 29 above). It observes, however, that in order to justify his decision the judge who ordered the measure took into account Chapter VIII of Volume II of the Code of Criminal Procedure, which was in force at the time, “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” (see paragraphs 14 and 30 above).
55. The Government submitted that the judge who had ordered the monitoring of the applicant’s telephone line had, in the instant case, complied with the safeguards recommended by the Court in that connection. He had indicated the identity and telephone numbers of the two suspects, stated that the measure was being taken for the purposes of an investigation into certain events into which a police inquiry was under way, limited the duration of the measure to one month and supervised its enforcement. The investigating judge had consequently anticipated the safeguards and guarantees against arbitrariness specified in the Kruslin v. France and Huvig v. France judgments five years before those judgments were delivered.
56. The Court recognises that the investigating judge attempted to ensure maximum protection with respect to the enforcement of the monitoring order under the legal provisions in force at the time. He had taken into account, at least in a general way, those provisions of the Code of Criminal Procedure “on the entry into and searches of closed premises, the opening of books and written documents and the interception and opening of written and telegraphic correspondence” (see paragraph 14 above) capable of serving as a basis for his decision.
57. However, it has to be noted that the guarantees cited by the Government (see paragraph 55 above), deduced from a wide construction of statutory provisions or court decisions, were not apparent from the actual wording of Article 18 § 3 of the Constitution, or, for the most part, from the provisions of the Code of Criminal Procedure which the judge considered when ordering the monitoring of the applicant’s telephone communications (see paragraphs 14 and 30 above).
58. The Court is aware of the efforts made by the legislature and the judicial authorities to introduce in both legislation and practice in Spain the guarantees required in this sphere by the Convention. The Supreme Court’s decision (auto) of 18 June 1992 (see paragraph 34 above) provides the best example. The Court, like the Delegate of the Commission, notes, however, that those developments took place well after the order for the tapping of the applicant’s telephone line had been made.
The Court also notes that, in any event, in the decision referred to above, the Supreme Court did not interpret the legislation applicable when the order for the monitoring of the applicant’s telephone was made, but the legislation as amended by Implementing Law no. 4/1988 of 25 May 1988 (see paragraph 31 above), by which the notion of telephone tapping was inserted into Article 579 of the Code of Criminal Procedure.
59. The Court notes that some of the conditions necessary under the Convention to ensure the foreseeability of the effects of the “law” and, consequently, to guarantee respect for private life and correspondence are not included either in Article 18 § 3 of the Constitution or in the provisions of the Code of Criminal Procedure cited in the order of 19 November 1985 (see paragraphs 14 and 30 above). They include, in particular, the conditions regarding the definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations and the use and destruction of the recordings made (see paragraph 46(iv) above).
60. Like the Delegate of the Commission, the Court cannot accept the Government’s argument that the judge who ordered the monitoring of the applicant’s telephone conversations could not have been expected to know the conditions laid down in the Kruslin and Huvig judgments five years before those judgments were delivered in 1990. It reiterates that the conditions referred to in the judgment cited by the Government concerning the quality of the law stem from the Convention itself. The requirement that the effects of the “law” be foreseeable means, in the sphere of monitoring telephone communications, that the guarantees stating the extent of the authorities’ discretion and the manner in which it is to be exercised must be set out in detail in domestic law so that it has a binding force which circumscribes the judges’ discretion in the application of such measures (see paragraph 46(iii) and (iv) above). Consequently, the Spanish “law” which the investigating judge had to apply should have provided those guarantees with sufficient precision. The Court further notes that at the time the order for the monitoring of the applicant’s telephone line was made it had already stated, in a judgment in which it had found a violation of Article 8, that “the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence” (see the Malone judgment cited above, p. 32, § 67). In addition, it points out that in any event the investigating judge who ordered the monitoring of the applicant’s telephone communications had himself put in place a number of guarantees which, as the Government said, did not become a requirement of the case-law until much later.
61. In summary, Spanish law, both written and unwritten, did not indicate with sufficient clarity at the material time the extent of the authorities’ discretion in the domain concerned or the way in which it should be exercised. Mr Valenzuela Contreras did not, therefore, enjoy the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society (see the Malone judgment cited above, p. 36, § 79). There has therefore been a violation of Article 8.
(ß) Aim of the interference and the need for it
62. Having regard to the foregoing conclusion, the Court, like the Commission, does not consider it necessary to consider whether the other requirements of paragraph 2 of Article 8 were complied with in the instant case.
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION
63. The applicant claimed just satisfaction under Article 50 of the Convention, which provides:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
64. The applicant sought 1,304,181 pesetas for the pecuniary damage sustained as a result of his conviction, corresponding to the compensation he had had to pay to Mrs M., the fine imposed on him and the portion of legal costs he had had to bear before the Madrid Audiencia provincial.
65. The Government argued that in the circumstances of the case the present judgment would in itself constitute sufficient just satisfaction. The Delegate of the Commission expressed no view.
66. The Court considers that there is no causal link between the finding of a violation of Article 8 and the alleged pecuniary damage corresponding to the amounts the applicant had to pay as a result of his conviction for making threats. The claim must therefore be dismissed.
B. Costs and expenses
67. The applicant sought 1,500,000 pesetas for the expenses and lawyers’ fees incurred before the Constitutional Court and the Convention institutions.
68. The Government considered those claims reasonable.
69. The Delegate of the Commission did not express a view.
70. Making its assessment on an equitable basis and having regard to the criteria it applies in such circumstances, the Court grants the sum claimed in full.
C. Default interest
71. According to the information available to the Court, the statutory rate of interest applicable in Spain at the date of adoption of the present judgment is 7.5% per annum.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Holds that it has no jurisdiction to consider the applicant’s complaint under Article 6 of the Convention;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds:
(a) that the respondent State is to pay the applicant, within three months, 1,500,000 (one million five hundred thousand) pesetas for costs and expenses;
(b) that simple interest at an annual rate of 7.5% shall be payable on that sum from the expiry of the above-mentioned three months until settlement;
4. Dismisses the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 30 July 1998.
Signed: Rudolf BERNHARDT
President
Signed: Herbert PETZOLD
Registrar
[1]. This summary by the registry does not bind the Court.
Notes by the Registrar
2. The case is numbered 58/1997/842/1048. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
[3]. Rules of Court A apply to all cases referred to the Court before the entry into force of Protocol No. 9 (1 October 1994) and thereafter only to cases concerning States not bound by that Protocol. They correspond to the Rules that came into force on 1 January 1983, as amended several times subsequently.
[4]. Note by the Registrar. For practical reasons this annex will appear only with the printed version of the judgment (in Reports of Judgments and Decisions 1998), but a copy of the Commission’s report is obtainable from the registry.
ROMAN ZAKHAROV v. RUSSIA
[2015] ECHR 1065
PROCEDURE
1. The case originated in an application (no. 47143/06) against the Russian Federation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Roman Andreyevich Zakharov (“the applicant”), on 20 October 2006.
2. The applicant was initially represented by Mr B. Gruzd, a lawyer practising in St Petersburg. He was subsequently represented by lawyers of the NGO EHRAC/Memorial Human Rights Centre, based in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights.
3. The applicant alleged that the system of secret interception of mobile telephone communications in Russia violated his right to respect for his private life and correspondence and that he did not have any effective remedy in that respect.
4. On 19 October 2009 the application was communicated to the Government.
5. On 11 March 2014 the Chamber of the First Section, to which the case had been allocated (Rule 52 § 1 of the Rules of Court), composed of Isabelle Berro-Lefèvre, President, Khanlar Hajiyev, Julia Laffranque, Linos-Alexandre Sicilianos, Erik Møse, Ksenija Turkovic, Dmitry Dedov, judges, and also of Søren Nielsen, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72).
6. A hearing took place in public in the Human Rights Building, Strasbourg, on 24 September 2014 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr G. Matyushkin, Representative of the Russian Federation
at the European Court of Human Rights, Agent,
Ms O. Sirotkina,
Ms I. Korieva,
Ms O. Iurchenko,
Mr O. Afanasev,
Mr A. Lakov, Advisers;
(b) for the applicant
Mr P. Leach,
Ms K. Levine,
Mr K. Koroteev,
Ms A. Razhikova, Counsel,
Ms E. Levchishina, Adviser.
The Court heard addresses by Mr Matyushkin, Mr Leach, Ms Levine, Ms Razhikova and Mr Koroteev, and also replies by Mr Matyushkin and Mr Leach to questions put by the judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1977 and lives in St Petersburg.
8. The applicant is the editor-in-chief of a publishing company and of an aviation magazine. He is also the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, an NGO monitoring the state of media freedom in the Russian regions, which promotes the independence of the regional mass media, freedom of speech and respect for journalists’ rights, and provides legal support, including through litigation, to journalists.
9. He was subscribed to the services of several mobile network operators.
10. On 23 December 2003 he brought judicial proceeding against three mobile network operators, claiming that there had been an interference with his right to the privacy of his telephone communications. He claimed that pursuant to Order no. 70 (see paragraphs 115 to 122 below) of the Ministry of Communications’ predecessor, the State Committee for Communications and Information Technologies, the mobile network operators had installed equipment which permitted the Federal Security Service (“the FSB”) to intercept all telephone communications without prior judicial authorisation. The applicant argued that Order no. 70, which had never been published, unduly restricted his right to privacy. He asked the court to issue an injunction ordering the removal of the equipment installed pursuant to Order no. 70, and to ensure that access to mobile telephone communications was given to authorised persons only. The Ministry of Communications and Information Technologies (hereafter “the Ministry of Communications”) and the St Petersburg and Leningrad Region Department of the FSB were joined as a third party to the proceedings.
11. On 5 December 2005 the Vasileostrovskiy District Court of St Petersburg dismissed the applicant’s claims. It found that the applicant had not proved that the mobile network operators had transmitted any protected information to unauthorised persons or permitted the unrestricted or unauthorised interception of communications. The equipment to which he referred had been installed to enable law-enforcement agencies to conduct operational-search activities in accordance with the procedure prescribed by law. The installation of such equipment had not in itself interfered with the privacy of the applicant’s communications. The applicant had failed to demonstrate any facts which would warrant a finding that his right to the privacy of his telephone communications had been violated.
12. The applicant appealed. He claimed, in particular, that the District Court had refused to accept several documents in evidence. Those documents had included two judicial orders authorising the interception of mobile telephone communications retrospectively and an addendum to the standard service provider agreement issued by one of the mobile network operators. One of the judicial orders in question, issued on 8 October 2002, authorised the interception of several people’s mobile telephone communications during the periods from 1 to 5 April, from 19 to 23 June, from 30 June to 4 July and from 16 to 20 October 2001. The other judicial order, issued on 18 July 2003, authorised the interception of a Mr E.’s mobile telephone communications during the period from 11 April to 11 October 2003. As to the addendum, it informed the subscriber that if his number were used to make terrorist threats, the mobile network operator might suspend the provision of the telephone service and transfer the collected data to the law-enforcement agencies. In the applicant’s opinion, the judicial orders and the addendum proved that the mobile network operators and law-enforcement agencies were technically capable of intercepting all telephone communications without obtaining prior judicial authorisation, and routinely resorted to unauthorised interception.
13. On 26 April 2006 the St Petersburg City Court upheld the judgment on appeal. It confirmed the District Court’s finding that the applicant had failed to prove that his telephone communications had been intercepted. Nor had he shown that there was a danger that his right to the privacy of his telephone communications might be unlawfully infringed. To establish the existence of such a danger, the applicant would have had to prove that the respondents had acted unlawfully. However, mobile network operators were required by law to install equipment enabling law-enforcement agencies to perform operational-search activities and the existence of that equipment did not in itself interfere with the privacy of the applicant’s communications. The refusal to admit the judicial orders of 8 October 2002 and 18 July 2003 in evidence had been lawful, as the judicial orders had been issued in respect of third persons and were irrelevant to the applicant’s case. The City Court further decided to admit in evidence and examine the addendum to the service provider agreement, but found that it did not contain any information warranting reconsideration of the District Court’s judgment.
14. It can be seen from a document submitted by the applicant that in January 2007 an NGO, “Civilian Control”, asked the Prosecutor General’s office to carry out an inspection of the Ministry of Communications’ Orders in the sphere of interception of communications in order to verify their compatibility with federal laws. In February 2007 an official from the Prosecutor General’s office telephoned “Civilian Control” and asked for copies of the unpublished attachments to Order No. 70, saying that the prosecutor’s office had been unable to obtain them from the Ministry of Communications. In April 2007 the Prosecutor General’s office refused to carry out the requested inspection.
II. RELEVANT DOMESTIC LAW
A. Right to respect for private life and correspondence
15. The Constitution guarantees to everyone the right to respect for his private life, personal and family secrets and the right to defend his honour and reputation (Article 23 § 1). It further guarantees the right to respect for correspondence, telephone, postal, telegraph and other communications. That right may be restricted only on the basis of a court order (Article 23 § 2).
16. The Constitution also stipulates that it is not permissible to collect, store, use or disseminate information about a person’s private life without his/her consent. State and municipal authorities must ensure that any person has access to documents and materials affecting his rights and freedoms, except where the law provides otherwise (Article 24).
17. The Communications Act of 7 July 2003 (no. 126-FZ) guarantees the privacy of postal, telegraphic and other forms of communication transmitted by means of telecommunications networks or mail services. Restrictions on the privacy of communications are permissible only in cases specified in federal laws (section 63(1)). The interception of communications is subject to prior judicial authorisation, except in cases specified in federal laws (section 63(3)).
18. On 2 October 2003 in its decision no. 345-O the Constitutional Court held that the right to privacy of telephone communications covered all data transmitted, stored or discovered by 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.
B. Responsibility for breach of privacy
19. The unauthorised collection or dissemination of information about the private or family life of a person without his or her consent, where it is committed out of mercenary or other personal interest and is damaging to the rights and lawful interests of citizens, is punishable by a fine, correctional labour or a custodial sentence of up to four months. The same actions committed by an official using his or her position are punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to six months (Article 137 of the Criminal Code).
20. Any breach of citizens’ right to the privacy of their postal, telegraphic, telephone or other forms of communication is punishable by a fine or correctional labour. The same act committed by an official using his or her position is punishable by a fine, a prohibition on occupying certain positions or a custodial sentence of up to four months (Article 138 of the Criminal Code).
21. Abuse of power by an official, where it is committed out of mercenary or other personal interest and entails a substantial violation of an individual’s or a legal entity’s rights and lawful interests, is punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 285 § 1 of the Criminal Code).
22. Actions by a public official which clearly exceed his or her authority and entail a substantial violation of an individual’s or a legal entity’s rights and lawful interests, are punishable by a fine, a prohibition on occupying certain posts or engaging in certain activities for a period of up to five years, correctional labour for a period of up to four years or imprisonment for a period ranging from four months to four years (Article 286 § 1 of the Criminal Code).
23. Ruling no. 19 of 16 October 2009 by the Plenary Supreme Court provides that for the purposes of Articles 285 and 286 of the Criminal Code “a substantial violation of an individual’s or a legal entity’s rights and lawful interests” means a violation of the rights and freedoms guaranteed by the generally established principles and provisions of international law and the Constitution of the Russian Federation – such as the right to respect for a person’s honour and dignity, private or family life, correspondence, telephone, postal, telegraph and other communications, the inviolability of the home, etc. In assessing whether the violation was “substantial” in respect of a legal entity, it is necessary to take into account the extent of the damage sustained as a result of the unlawful act, the nature and the amount of the pecuniary damage, the number of persons affected and the gravity of the physical, pecuniary or non-pecuniary damage inflicted on them (paragraph 18 (2)).
24. Criminal proceedings are opened if there are sufficient facts showing that a criminal offence has been committed (Article 140 § 2 of the Code of Criminal Procedure).
C. General provisions on interception of communications
25. The interception of communications is governed by the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ, hereafter “the OSAA”), applicable to the interception of communications both in the framework of criminal proceedings and outside such framework; and the Code of Criminal Procedure of 18 December 2001 (no. 174-FZ, in force since 1 July 2002, hereafter “the CCrP”), applicable only to the interception of communications in the framework of criminal proceedings.
26. The aims of operational-search activities are: (1) the detection, prevention, suppression and investigation of criminal offences and the identification of persons conspiring to commit, committing, or having committed a criminal offence; (2) the tracing of fugitives from justice and missing persons; (3) obtaining information about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 2 of the OSAA). On 25 December 2008 that section was amended and a further aim, that of obtaining information about property subject to confiscation, was added.
27. State officials and agencies performing operational-search activities must show respect for the private and family life, home and correspondence of citizens. It is prohibited to perform operational-search activities to achieve aims or objectives other than those specified in the Act (section 5(1) and (2) of the OSAA).
28. State officials and agencies may not (1) conduct operational-search activities in the interest of political parties, non-profit or religious organisations; (2) conduct secret operational-search activities in respect of federal, regional or municipal authorities, political parties, or non-profit or religious organisations with the aim of influencing their activities or decisions; (3) disclose to anyone the data collected in the course of the operational-search activities if that data concern the private or family life of citizens or damage their reputation or good name, except in cases specified in federal laws; (4) incite, induce or entrap anyone to commit a criminal offence; (5) falsify the results of operational-search activities (section 5(8) of the OSAA).
29. Operational-search activities include, inter alia, the interception of postal, telegraphic, telephone and other forms of communication and the collection of data from technical channels of communication. The Act stipulates that audio and video recording, photography, filming and other technical means may be used during operational-search activities, provided that they are not harmful to the life or health of those involved or to the environment. Operational-search activities involving the interception of postal, telegraphic, telephone and other forms of communication and collection of data from technical channels of communication using equipment installed by communications service providers is carried out by technical means by the FSB and the agencies of the Ministry of the Interior, in accordance with decisions and agreements signed between the agencies involved (section 6 of the OSAA).
30. Presidential Decree no. 891 of 1 September 1995 provides that the interception of postal, telegraphic or other communications is to be carried out by the FSB in the interests and on behalf of all law-enforcement agencies (paragraph 1). In situations where the FSB does not have available the necessary technical equipment, interceptions may be carried out by the agencies of the Ministry of the Interior in the interests and on behalf of all law-enforcement agencies (paragraph 2). Similar provisions are contained in paragraphs 2 and 3 of Order no. 538, issued by the Government on 27 August 2005.
D. Situations that may give rise to interception of communications
31. Operational-search activities involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or within the privacy of the home, may be conducted following the receipt of information (1) that a criminal offence has been committed or is ongoing, or is being plotted; (2) about persons conspiring to commit, or committing, or having committed a criminal offence; or (3) about events or activities endangering the national, military, economic or ecological security of the Russian Federation (section 8(2) of the OSAA).
32. The OSAA provides that interception of telephone and other communications may be authorised only in cases where a person is suspected of, or charged with, a criminal offence of medium severity, a serious offence or an especially serious criminal offence, or may have information about such an offence (section 8(4) of the OSAA). The CCrP also provides that interception of telephone and other communications of a suspect, an accused or other person may be authorised if there are reasons to believe that they may contain information relevant for the criminal case in respect of a criminal offence of medium severity, a serious offence or an especially serious criminal offence (Article 186 § 1 of the CCrP).
33. Article 15 of the Criminal Code provides that “offences of medium severity” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between three and five years’ imprisonment and unpremeditated offences for which the Criminal Code prescribes a maximum penalty of more than three years’ imprisonment. “Serious offences” are premeditated offences for which the Criminal Code prescribes a maximum penalty of between five and ten years’ imprisonment. “Especially serious offences” are premeditated offences for which the Code prescribes a maximum penalty of more than ten years’ imprisonment or a harsher penalty.
E. Authorisation procedure and time-limits
1. Operational-Search Activities Act
34. Operational-search measures involving interference with the constitutional right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services or within the privacy of the home – such as an inspection of premises or buildings, an interception of postal, telegraphic, telephone and other forms of communication or a collection of data from technical channels of communication – require prior judicial authorisation (section 8(2) of the OSAA).
35. In urgent cases where there is an immediate danger that a serious or especially serious offence may be committed or where there is information about events or activities endangering national, military, economic or ecological security, the operational-search measures specified in section 8(2) may be conducted without prior judicial authorisation. In such cases a judge must be informed within twenty-four hours of the commencement of the operational-search activities. If judicial authorisation has not been obtained within forty-eight hours of the commencement of the operational-search activities, those activities must be stopped immediately (section 8(3) of the Act).
36. The examination of requests to take measures involving interference with the constitutional right to the privacy of correspondence and telephone, postal, telegraphic and other communications transmitted by means of telecommunications networks or mail services, or with the right to privacy of the home, falls within the competence of a court in the locality where the requested measure is to be carried out or in the locality where the requesting body is located. The request must be examined immediately by a single judge (section 9(1) of the Act).
37. The judge takes a decision on the basis of a reasoned request by the head of one of the agencies competent to perform operational-search activities. Relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures, may also be produced at the judge’s request (section 9(2) and (3) of the Act).
38. The judge examining the request shall decide whether to authorise measures involving interference with the above-mentioned constitutional rights, or to refuse authorisation, giving reasons. The judge must specify the period of time for which the authorisation is granted, which shall not normally exceed six months. If necessary, the judge may extend the authorised period after a fresh examination of all the relevant materials (section 9(4) and (5) of the Act).
39. The judicial decision authorising operational-search activities and the materials that served as a basis for that decision must be held in the exclusive possession of the State agency performing the operational-search activities (section 12(3) of the Act).
40. On 14 July 1998 the Constitutional Court, in its decision no. 86-O, dismissed as inadmissible a request for a review of the constitutionality of certain provisions of the OSAA. It held, in particular, that a judge was to authorise investigative measures involving interference with constitutional rights only if he or she was persuaded that such measures were lawful, necessary and justified, that is, compatible with all the requirements of the OSAA. The burden of proof was on the requesting State agency to show the necessity of the measures. Supporting materials were to be produced to the judge at his or her request. Given that some of those materials might contain State secrets, only judges with the necessary level of security clearance could examine authorisation requests. Further, relying on the need to keep the surveillance measures secret, the Constitutional Court held that the principles of a public hearing and adversarial proceedings were not applicable to the authorisation proceedings. The fact that the person concerned was not entitled to participate in the authorisation proceedings, to be informed about the decision taken or to appeal to a higher court did not therefore violate that person’s constitutional rights.
41. On 2 October 2003 the Constitutional Court, in its decision
no. 345-O, held that the judge had an obligation to examine the materials submitted to him or her in support of a request for interception thoroughly and carefully. If the request was insufficiently substantiated, the judge might request additional information.
42. Further, on 8 February 2007 the Constitutional Court, in its decision no. 1-O, dismissed as inadmissible a request for a review of the constitutionality of section 9 of the OSAA. The Court found that before granting authorisation to perform operational-search measures the judge had an obligation to verify the grounds for that measure. The judicial decision authorising operational-search measures was to contain reasons and to refer to specific grounds for suspecting that a criminal offence had been committed, or was ongoing, or was being plotted or that activities endangering national, military, economic or ecological security were being carried out, and that the person in respect of whom operational-search measures were requested was involved in those criminal or otherwise dangerous activities.
43. On 15 July 2008 the Constitutional Court, in its decision no. 460-O-O, dismissed as inadmissible a request for a review of the constitutionality of sections 5, 11 and 12 of the OSAA. The Constitutional Court found that the person whose communications had been intercepted was entitled to lodge a supervisory review complaint against the judicial decision authorising the interception. The fact that he had no copy of that decision did not prevent him from lodging the supervisory-review complaint, because the relevant court could request it from the competent authorities.
2. Code of Criminal Procedure
44. Investigative measures involving a search in a person’s home or interception of his or her telephone calls and other communications are subject to prior judicial authorisation. A request to search a person’s home or intercept his or her communications must be submitted by an investigator with a prosecutor’s approval and must be examined by a single judge within twenty-four hours. The prosecutor and the investigator are entitled to attend. The judge examining the request shall decide whether to authorise the requested measure, or to refuse authorisation, giving reasons (Article 165 of the CCrP).
45. A court may grant authorisation to intercept the communications of a suspect, an accused or other persons if there are reasons to believe that information relevant to the criminal case may be discussed (Article 186 § 1 of the CCrP).
46. A request for authorisation to intercept communications must clearly mention the following: (1) the criminal case to which the request is related; (2) the grounds for conducting the requested measures; (3) the family name, the first name and the patronymic of the person whose communications are to be intercepted; (4) the duration of the requested measure; (5) the State agency that will perform the interception (Article 186 § 3 of the CCrP)
47. The judicial decision authorising interception of communications must be forwarded by the investigator to the State agency charged with its implementation. The interception of communications may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186 §§ 4 and 5 of the CCrP).
48. A court may also authorise the monitoring of communications data relating to a person’s telephone or wireless connections if there are sufficient reasons to believe that such data may be relevant to a criminal case. A request for authorisation must contain the same elements referred to in paragraph 46 above. A copy of the judicial decision authorising the monitoring of a person’s communications-related data is forwarded by the investigator to the relevant communications service provider, which must then submit the requested data to the investigator on a regular basis, and at least once a week. The monitoring of communications data may be authorised for a period not exceeding six months, and is discontinued by the investigator when it is no longer necessary. It must in any case be discontinued when the investigation has been completed (Article 186.1 of the CCrP, added on 1 July 2010).
F. Storage, use and destruction of collected data
1. Storage of collected data
49. Section 10 of the OSAA stipulates that law-enforcement agencies performing operational-search activities may create and use databases or open personal files. The personal file must be closed when the aims specified in section 2 of the Act have been achieved or if it has been established that it is impossible to achieve them.
50. In its decision of 14 July 1998 (cited in paragraph 40 above) the Constitutional Court noted, as regards the possibility provided by section 10 for law-enforcement agencies conducting operational-search activities to create databases or open personal files, that only the data relating to the prevention or investigation of criminal offences could be entered into such databases or personal files. Given that criminal activities did not fall within the sphere of private life, collection of information about such criminal activities did not interfere with the right to respect for private life. If information about a person’s criminal activities entered into a file was not subsequently confirmed, the personal file had to be closed.
51. Records of intercepted telephone and other communications must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (section 8(4) of the OSAA).
52. Information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret. It may be declassified only pursuant to a special decision of the head of the State agency performing the operational-search activities (section 12(1) of the OSAA and section 5(4) of the State Secrets Act, Law no. 5485-I of 21 July 1993).
53. Materials containing State secrets should be clearly marked with the following information: degree of secrecy, the State agency which has taken the decision to classify them, registration number, and the date or conditions for declassifying them (section 12 of the State Secrets Act).
2. Use of collected data and conditions for their disclosure
54. Information containing State secrets may be disclosed to another State authority, an organisation or an individual only subject to authorisation by the State authority which took the decision to classify that information. It may be disclosed only to State authorities or organisations holding a special license or to individuals with the required level of security clearance. The State authority or organisation to which classified information is disclosed must ensure that that information is adequately protected. The head of such State authority or organisation is personally responsible for protecting the classified information against unauthorised access or disclosure (sections 16 and 17 of the State Secrets Act).
55. A license to access State secrets may be issued to an organisation or a company only after it has been confirmed that it has specific internal sections charged with data protection, that its employees are qualified to work with classified information and that it uses approved systems of data protection (section 27 of the State Secrets Act).
56. Security clearance is granted only to those state officials who genuinely need it for the performance of their duties. It is also granted to judges for the period of their service and to counsel participating in a criminal case if the case-file contains materials involving State secrets. Anyone who has been granted security clearance must give a written undertaking not to disclose the classified information entrusted to him or her (paragraphs 7, 11 and 21 of Regulation no. 63 of 6 February 2010 of the Government of the Russian Federation).
57. The head of the State authority or organisation in possession of information containing State secrets is responsible for giving State officials and other authorised persons access to that information. He or she must ensure that only the information that the recipient needs for the performance of his or her duties is disclosed (section 25 of the State Secrets Act).
58. If the data collected in the course of operational-search activities contain information about the commission of a criminal offence, that information, together with all the necessary supporting material such as photographs and audio or video recordings, must be sent to the competent investigation authorities or a court. If the information was obtained as a result of operational-search measures involving interference with the right to the privacy of postal, telegraphic and other communications transmitted by means of a telecommunications network or mail services, or with the privacy of the home, it must be sent to the investigation or prosecution authorities together with the judicial decision authorising those measures. The information must be transmitted in accordance with the special procedure for handling classified information, unless the State agency performing operational-search activities has decided to declassify it (paragraphs 1, 12, 14 and 16 of Order no. 776/703/509/507/1820/42/535/398/68 of 27 September 2013 by the Ministry of the Interior).
59. If the person whose telephone or other communications were intercepted is charged with a criminal offence, the records are to be given to the investigator and attached to the criminal case file. Their further use and storage are governed by criminal procedural law (section 8(5) of the OSAA).
60. Data collected as a result of operational-search activities may be used for the preparation and conduct of the investigation and court proceedings and used as evidence in criminal proceedings in accordance with the legal provisions governing the collection, evaluation and assessment of evidence. The decision to transfer the collected data to other law-enforcement agencies or to a court is taken by the head of the State agency performing the operational-search activities (section 11 of the OSAA).
61. If the interception was authorised in the framework of criminal proceedings, the investigator may obtain the records from the agency conducting it at any time during the authorised period of interception. The records must be sealed and must be accompanied by a cover letter indicating the dates and time of the beginning and end of the recorded communications, as well as the technical means used to intercept them. Recordings must be listened to by the investigator in the presence of attesting witnesses, an expert where necessary and the persons whose communications have been intercepted. The investigator must draw up an official report containing a verbatim transcription of those parts of the recorded communications that are relevant to the criminal case (Article 186 §§ 6 and 7 of the CCrP). On 4 March 2013 Article 186 § 7 was amended and the requirement of the presence of attesting witnesses was deleted.
62. Recordings and communications-related data collected are to be attached to the criminal case file. They must be sealed and stored under conditions excluding any risk of their being listened to or copied by unauthorised persons (Article 186 § 8 of the CCrP and Article 186.1, added on 1 July 2010).
63. The results of operational-search activities involving a restriction on the right to respect for correspondence, telephone, postal, telegraph or other communications may be used as evidence in criminal proceedings only if they have been obtained pursuant to a court order and if the operational-search activities have been carried out in accordance with the law on criminal procedure (paragraph 14 of Ruling no. 8 of 31 October 1995 by the Plenary Supreme Court of the Russian Federation).
64. It is prohibited to use in evidence data, obtained as a result of operational-search activities, which do not comply with the admissibility-of-evidence requirements of the CCrP (Article 89 of the CCrP). Evidence obtained in breach of the CCrP shall be inadmissible. Inadmissible evidence shall have no legal force and cannot be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. If a court decides to exclude evidence, that evidence shall have no legal force and cannot be relied on in a judgment or other judicial decision, or be examined or used during the trial (Articles 75 and 235 of the CCrP).
3. Destruction of collected data
65. The data collected in the course of operational-search activities in respect of a person whose guilt has not been proved in accordance with the procedure prescribed by law must be stored for a year and then destroyed, unless that data are needed in the interests of the service or justice. Audio recordings and other materials collected as a result of intercepting telephone or other communications must be stored for six months and then destroyed if the person has not been charged with a criminal offence. The judge who authorised the interception must be informed of the scheduled destruction three months in advance (section 5(7) of the OSAA).
66. If the person has been charged with a criminal offence, at the end of the criminal proceedings the trial court takes a decision on the further storage or destruction of the data used in evidence. The destruction must be recorded in a report to be signed by the head of the investigation authority and included in the case file (Article 81 § 3 of the CCrP and paragraph 49 of Order no. 142 of 30 September 2011 of the Investigations Committee).
G. Supervision of interception of communications
67. The heads of the agencies conducting operational-search activities are personally responsible for the lawfulness of all operational-search activities (section 22 of the OSAA).
68. Overall supervision of operational-search activities is exercised by the President, the Parliament and the Government of the Russian Federation within the limits of their competence (section 20 of the OSAA).
69. The Prosecutor General and competent lower-level prosecutors may also exercise supervision over operational-search activities. At the request of a competent prosecutor, the head of a State agency performing operational-search activities must produce operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions. Materials containing information about undercover agents or police informers may be disclosed to the prosecutor only with the agent’s or informer’s consent, except in cases of criminal proceedings against them. The head of a State agency may be held liable in accordance with the law for failure to comply with the prosecutor’s request. The prosecutor must ensure the protection of the data contained in the materials produced (section 21 of the OSAA).
70. The Prosecutors’ Office Act (Federal law no. 2202-I of 17 January 1992) provides that the Prosecutor General is to be appointed or dismissed by the Federation Council (the upper house of the Parliament) on proposal by the President (section 12). Lower-level prosecutors are to be appointed by the Prosecutor General after consultation with the regional executive authorities (section 13). To be appointed as a prosecutor the person must be a Russian citizen and must have a Russian law degree (section 40.1).
71. In addition to their prosecuting functions, prosecutors are responsible for supervising whether the administration of detention facilities, bailiffs’ activities, operational-search activities and criminal investigations are in compliance with the Russian Constitution and Russian laws (section 1). Prosecutors also coordinate the activities of all law-enforcement authorities in combatting crime (section 8).
72. As regards supervision of operational-search activities, prosecutors may review whether measures taken in the course of operational-search activities are lawful and respectful of human rights (section 29). Prosecutors’ orders made in the context of such supervision must be complied with within the time-limit set. Failure to comply may result in liability in accordance with the law (section 6).
73. Prosecutors may also examine complaints of breaches of the law and give a reasoned decision on each complaint. Such a decision does not prevent the complainant from bringing the same complaint before a court. If a prosecutor discovers a breach of the law, he or she must take measures to bring the responsible persons to liability (section 10).
74. The Federal Security Service Act of 3 April 1995 (no. 40-FZ, hereafter “the FSB Act”) provides that information about the security services’ undercover agents, as well as about the tactics, methods and means used by them is outside the scope of supervision by prosecutors (section 24).
75. The procedures for prosecutors’ supervision of operational-search activities have been set out in Order no. 33, issued by the Prosecutor General’s Office on 15 February 2011.
76. Order no. 33 provides that a prosecutor may carry out routine inspections of agencies carrying out operational-search activities, as well as ad hoc inspections following a complaint by an individual or receipt of information about potential violations. Operational-search activities performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (paragraph 5 of Order no. 33).
77. During the inspection the prosecutor must verify compliance with the following requirements:
– observance of citizens’ constitutional rights, such as the right to respect for private and family life, home, correspondence, telephone, postal, telegraph and other communications;
– that the measures taken in the course of operational-search activities are lawful and justified, including those measures that have been authorised by a court (paragraphs 4 and 6 of Order no. 33).
78. During the inspection the prosecutor must study the originals of the relevant operational-search materials, including personal files, information on the use of technical equipment, registration logs and internal instructions, and may request explanations from competent officials. The prosecutors must protect the sensitive data entrusted to them from unauthorised access or disclosure (paragraphs 9 and 12 of Order no. 33).
79. If a prosecutor identifies a breach of the law, he or she must request the official responsible for it to remedy the breach. He or she must also take measures to stop and remedy violations of citizens’ rights and to bring those responsible to liability (paragraphs 9 and 10 of Order no. 33). A State official who refuses to comply with a prosecutor’s orders may be brought to liability in accordance with the law (paragraph 11).
80. The prosecutors responsible for supervision of operational-search activities must submit six-monthly reports detailing the results of the inspections to the Prosecutor General’s Office (paragraph 15 of Order no. 33). A report form to be filled by prosecutors is attached to Order no. 33. The form indicates that it is confidential. It contains two sections, both in table format. The first section concerns inspections carried out during the reference period and contains information about the number of inspections, number of files inspected and number of breaches detected. The second section concerns citizens’ complaints and contains information about the number of complaints examined and granted.
H. Access by individuals to data collected about them in the course of interception of communications
81. Russian law does not provide that a person whose communications are intercepted must be notified at any point. However, a person who is in possession of the facts of the operational-search measures to which he or she was subjected and whose guilt has not been proved in accordance with the procedure prescribed by law, that is, he or she has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing, is entitled to receive information about the data collected in the course of the operational-search activities, to the extent compatible with the requirements of operational confidentiality (“???????????”) and excluding data which could enable State secrets to be disclosed (section 5(4-6) of the OSAA).
82. In its decision of 14 July 1998 (cited in paragraph 40 above) the Constitutional Court noted that any person who was in possession of the facts of the operational-search measures to which he or she had been subjected was entitled to receive information about the data collected in the course of those activities, unless that data contained State secrets. Under section 12 of the OSAA, data collected in the course of operational-search activities – such as information about criminal offences and the persons involved in their commission – were a State secret. However, information about breaches of citizens’ rights or unlawful acts on the part of the authorities could not be classified as a State secret and should be disclosed. Section 12 could not therefore serve as a basis for refusing access to information affecting a person’s rights, provided that such information did not concern the aims of, or the grounds for, the operational-search activities. In view of the above, the fact that, pursuant to the contested Act, a person was not entitled to be granted access to the entirety of the data collected about him or her did not constitute a violation of that person’s constitutional rights.
I. Judicial review
1. General provisions on judicial review of interception of communications as established by the OSAA
83. A person claiming that his or her rights have been or are being violated by a State official performing operational-search activities may complain to the official’s superior, a prosecutor or a court. If a citizen’s rights were violated in the course of operational-search activities by a State official, the official’s superior, a prosecutor or a court must take measures to remedy the violation and compensate the damage (section 5(3) and (9) of the OSAA).
84. If a person was refused access to information about the data collected about him or her in the course of operational-search activities, he or she is entitled to know the reasons for the refusal of access and may appeal against the refusal to a court. The burden of proof is on the law-enforcement authorities to show that the refusal of access is justified. To ensure a full and thorough judicial examination, the law-enforcement agency responsible for the operational-search activities must produce, at the judge’s request, operational-search materials containing information about the data to which access was refused, with the exception of materials containing information about undercover agents or police informers. If the court finds that the refusal to grant access was unjustified, it may compel the law-enforcement agency to disclose the materials to the person concerned (section 5(4 to 6) of the OSAA).
85. In its decision of 14 July 1998 (cited in paragraph 40 above) the Constitutional Court noted that a person who learned that he or she had been subjected to operational-search activities and believed that the actions of State officials had violated his or her rights was entitled, under section 5 of the OSAA, to challenge before a court the grounds for conducting such activities, as well as the specific actions performed by the competent authorities in the course of such activities, including in those cases where they had been authorised by a court.
86. As regards procedural matters, the Constitutional Court held that in proceedings in which the grounds for the operational-search activities or the actions of the competent authorities conducting such activities were challenged, as well as proceedings against the refusal to give access to the data collected, the law-enforcement authorities were to submit to the judge, at his or her request, all relevant operational-search materials, except materials containing information about undercover agents or police informers.
87. A person wishing to complain about interception of his or her communications may lodge a judicial review complaint under Article 125 of the CCrP; a judicial review complaint under Chapter 25 of the Code of Civil Procedure and the Judicial Review Act replaced, as from 15 September 2015, by the Code of Administrative Procedure; or a civil tort claim under Article 1069 of the Civil Code.
2. A judicial review complaint under Article 125 of the CCrP
88. The Plenary Supreme Court in its Ruling no. 1 of 10 February 2009 held that actions of officials or State agencies conducting operational-search activities at the request of an investigator could be challenged in accordance with the procedure prescribed by Article 125 of the CCrP (paragraph 4). The complaints lodged under that Article may be examined only while the criminal investigation is pending. If the case has already been transmitted to a court for trial, the judge declares the complaint inadmissible and explains to the complainant that he or she may raise the complaints before the relevant trial court (paragraph 9).
89. Article 125 of the CCrP provides for the judicial review of decisions and acts or failures to act by an investigator or a prosecutor which are capable of adversely affecting the constitutional rights or freedoms of the participants to criminal proceedings. The lodging of a complaint does not suspend the challenged decision or act, unless the investigator, the prosecutor, or the court decides otherwise. The court must examine the complaint within five days. The complainant, his counsel, the investigator and the prosecutor are entitled to attend the hearing. The complainant must substantiate his complaint (Article 125 §§ 1-4 of the CCrP).
90. Participants in the hearing are entitled to study all the materials submitted to the court and to submit additional materials relevant to the complaint. Disclosure of criminal-case materials is permissible only if it is not contrary to the interests of the investigation and does not breach the rights of the participants in the criminal proceedings. The judge may request the parties to produce the materials which served as a basis for the contested decision or any other relevant materials (paragraph 12 of Ruling no. 1 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation).
91. Following the examination of the complaint, the court either declares the challenged decision, act or failure to act unlawful or unjustified and instructs the responsible official to rectify the indicated shortcoming, or dismisses the complaint (Article 125 § 5 of the CCrP). When instructing the official to rectify the indicated shortcoming, the court may not indicate any specific measures to be taken by the official or annul or order that the official annul the decision found to be unlawful or unjustified (paragraph 21 of Ruling no. 1 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation).
3. A judicial review complaint under Chapter 25 of the Code of Civil Procedure, the Judicial Review Act and the Code of Administrative Procedure
92. Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation provides that complaints about decisions and acts of officials or agencies performing operational-search activities that may not be challenged in criminal proceedings, as well as complaints about a refusal of access to information about the data collected in the course of operational-search activities, may be examined in accordance with the procedure established by Chapter 25 of the Code of Civil Procedure (paragraph 7).
93. Chapter 25 of the Code of Civil Procedure (the CCP), in force until 15 September 2015, established the procedure for examining complaints against decisions and acts of officials violating citizens’ rights and freedoms, which was further detailed in the Judicial Review Act (Law no. 4866-1 of 27 April 1993 on Judicial review of decisions and acts violating citizens’ rights and freedoms). On 15 September 2015 Chapter 25 of the CCP and the Judicial Review Act were repealed and replaced by the Code of Administrative Procedure (Law no. 21-FZ of 8 March 2015, hereafter “the CAP”) which entered into force on that date. The CAP confirmed in substance and expounded the provisions of Chapter 25 of the CCP and the Judicial Review Act.
94. The CCP, the Judicial Review Act and the CAP all provide that a citizen may lodge a complaint before a court about an act or decision by any State or municipal authority or official if he considers that it has violated his rights and freedoms (Article 254 of the CCP and section 1 of the Judicial Review Act). The complaint may concern any decision, act or omission which has violated the citizen’s rights or freedoms, has impeded the exercise of rights or freedoms, or has imposed a duty or liability on him (Article 255 of the CCP, section 2 of the Judicial Review Act and Article 218 § 1 of the CAP).
95. The complaint must be lodged with a court of general jurisdiction within three months of the date on which the complainant learnt of the breach of his rights. The time-limit may be extended for valid reasons (Article 254 of the CCP, sections 4 and 5 of the Judicial Review Act and Articles 218 § 5 and 219 §§ 1 and 7 of the CAP). The complaint must mention the identification number and the date of the contested decision or the date and place of commission of the contested act (Article 220 § 2 (3) of the CAP). The claimant must submit confirming documents or explain why he or she is unable to submit them (Article 220 §§ 2 (8) and 3 of the CAP). If the claimant does not meet the above requirements, the judge declares the complaint inadmissible (Article 222 § 3 of the CAP).
96. The burden of proof as to the lawfulness of the contested decision, act or omission lies with the authority or official concerned. The complainant must, however, prove that his rights and freedoms were breached by the contested decision, act or omission (section 6 of the Judicial Review Act and Article 226 § 11 of the CAP).
97. Under the CCP the complaint had to be examined within ten days (Article 257 of the CCP), while under the CAP it must be examined within two months (Article 226 § 1 of the CAP). If the court finds the complaint justified, it issues a decision annulling the contested decision or act and requiring the authority or official to remedy in full the breach of the citizen’s rights (Article 258 § 1 of the CCP, section 7 of the Judicial Review Act and Article 227 §§ 2 and 3 of the CAP). The court may determine the time-limit for remedying the violation and/or the specific steps which need to be taken to remedy the violation in full (paragraph 28 of Ruling no. 2 of 10 February 2009 of the Plenary Supreme Court of the Russian Federation and Article 227 § 3 of the CAP). The claimant may then claim compensation in respect of pecuniary and non-pecuniary damage in separate civil proceedings (section 7 of the Judicial Review Act).
98. The court may reject the complaint if it finds that the challenged act or decision has been taken by a competent authority or official, is lawful and does not breach the citizen’s rights (Article 258 § 4 of the CCP and Articles 226 § 9 and 227 § 2 of the CAP).
99. A party to the proceedings may lodge an appeal with a higher court (Article 336 of the CCP as in force until 1 January 2012, Article 320 of the CCP as in force after 1 January 2012, and Article 228 of the CAP). The appeal decision enters into force on the day of its delivery (Article 367 of the CCP as in force until 1 January 2012, Article 329 § 5 as in force after 1 January 2012, and Articles 186 and 227 § 5 of the CAP).
100. The CCP provided that a judicial decision allowing a complaint and requiring the authority or official to remedy the breach of the citizen’s rights had to be dispatched to the head of the authority concerned, to the official concerned or to their superiors within three days of its entry into force (Article 258 § 2 of the CCP). The Judicial Review Act required that the judicial decision be dispatched within ten days of its entry into force (section 8). The CAP requires that the judicial decision be dispatched on the day of its entry into force (Article 227 § 7). The court and the complainant must be notified of the enforcement of the decision no later than one month after its receipt (Article 258 § 3 of the CCP, section 8 of the Judicial Review Act and Article 227 § 9 of the CAP).
4. A tort claim under Article 1069 the Civil Code
101. Damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor. The tortfeasor is not liable for damage if he or she proves that the damage has been caused through no fault of his or her own (Article 1064 §§ 1 and 2 of the Civil Code).
102. State and municipal bodies and officials shall be liable for damage caused to a citizen by their unlawful actions or omissions (Article 1069 of the Civil Code). Irrespective of any fault by State officials, the State or regional treasury is liable for damage sustained by a citizen on account of (i) unlawful criminal conviction or prosecution; (ii) unlawful application of a preventive measure, and (iii) unlawful administrative punishment (Article 1070 of the Civil Code).
103. A court may impose on the tortfeasor an obligation to compensate non-pecuniary damage (physical or mental suffering). Compensation for non-pecuniary damage is unrelated to any award in respect of pecuniary damage (Articles 151 § 1 and 1099 of the Civil Code). The amount of compensation is determined by reference to the gravity of the tortfeasor’s fault and other significant circumstances. The court also takes into account the extent of physical or mental suffering in relation to the victim’s individual characteristics (Article 151 § 2 and Article 1101 of the Civil Code).
104. Irrespective of the tortfeasor’s fault, non-pecuniary damage shall be compensated for if the damage was caused (i) by a hazardous device; (ii) in the event of unlawful conviction or prosecution or unlawful application of a preventive measure or unlawful administrative punishment, and (iii) through dissemination of information which was damaging to honour, dignity or reputation (Article 1100 of the Civil Code).
105. In civil proceedings a party who alleges something must prove that allegation, unless provided otherwise by Federal Law (Article 56 § 1 of the CCP).
5. A complaint to the Constitutional Court
106. The Constitutional Court Act (Law no. 1-FKZ of 21 July 1994) provides that the Constitutional Court’s opinion as to whether the interpretation of a legislative provision adopted by judicial and other law-enforcement practice is compatible with the Constitution, when that opinion is expressed in a judgment, must be followed by the courts and law-enforcement authorities from the date of that judgment’s delivery (section 79 (5)).
J. Obligations of communications service providers
1. Obligation to protect personal data and privacy of communications
107. The Communications Act provides that communications service providers must ensure privacy of communications. Information about the communications transmitted by means of telecommunications networks or mail services, and the contents of those communications may be disclosed only to the sender and the addressee or their authorised representatives, except in cases specified in federal laws (section 63(2) and (4) of the Communications Act).
108. Information about subscribers and the services provided to them is confidential. Information about subscribers includes their family names, first names, patronymics and nicknames for natural persons; company names and family names, first names and patronymics of company directors and employees for legal persons; subscribers’ addresses, numbers and other information permitting identification of the subscriber or his terminal equipment; data from payment databases, including information about the subscribers’ communications, traffic and payments. Information about subscribers may not be disclosed to third persons without the subscriber’s consent, except in cases specified in federal laws (section 53 of the Communications Act).
2. Obligation to co-operate with law-enforcement authorities
109. The Communications Act imposes an obligation on communications service providers to furnish to the law-enforcement agencies, in cases specified in federal laws, information about subscribers and services received by them and any other information they require in order to achieve their aims and objectives (section 64(1) of the Communications Act).
110. On 31 March 2008 the Moscow City Council discussed a proposal to introduce an amendment to section 64(1) of the Communications Act requiring law-enforcement agencies to show judicial authorisation to communications service providers when requesting information about subscribers. The representatives of the FSB and the Ministry of the Interior informed those present that judicial decisions authorising interceptions were classified documents and could not therefore be shown to communications service providers. The proposal to introduce the amendment was later rejected.
111. Communications service providers must ensure that their networks and equipment comply with the technical requirements developed by the Ministry of Communications in cooperation with law-enforcement agencies. Communications service providers must also ensure that the methods and tactics employed by law-enforcement agencies remain confidential (section 64(2) of the Communications Act).
112. In cases specified in federal laws communications service providers must suspend provision of service to a subscriber upon receipt of a reasoned written order by the head of a law-enforcement agency conducting operational-search activities or protecting national security (section 64(3) of the Communications Act).
113. The FSB Act requires communications service providers to install equipment permitting the FSB to carry out operational-search activities (section 15).
3. Technical requirements for equipment to be installed by communications service providers
114. The main characteristics of the system of technical facilities enabling operational-search activities to be carried out (“??????? ??????????? ??????? ??? ??????????? ??????? ??????????-????????? ???????????” (‘????’), hereafter referred to as “the SORM”) are outlined in a number of orders and regulations issued by the Ministry of Communications.
(a) Order no. 70
115. Order no. 70 on the technical requirements for the system of technical facilities enabling the conduct of operational-search activities using telecommunications networks, issued by the Ministry of Communications on 20 April 1999, stipulates that equipment installed by communications service providers must meet certain technical requirements, which are described in the addendums to the Order. The Order, with the addendums, has been published in the Ministry of Communications’ official magazine SvyazInform, distributed through subscription. It can also be accessed through a privately-maintained internet legal database, which reproduced it from the publication in SvyazInform.
116. Addendums nos. 1 and 3 describe the technical requirements for the SORM on mobile telephone networks. They specify that interception of communications is performed by law-enforcement agencies from a remote-control terminal connected to the interception equipment installed by the mobile network operators. The equipment must be capable, inter alia, of (a) creating databases of interception subjects, to be managed from the remote-control terminal; (b) intercepting communications and transmitting the data thereby obtained to the remote-control terminal; (c) protecting the data from unauthorised access, including by the employees of the mobile network operator; (d) providing access to subscriber address databases (paragraphs 1.1. and 1.6 of Addendum no. 1).
117. More precisely, the equipment must ensure (a) interception of all the incoming and outgoing calls of the interception subject; (b) access to information about his or her whereabouts; (c) maintenance of interception capability where an ongoing connection is transferred between the networks of different mobile network operators; (d) maintenance of interception capability in cases involving supplementary services, such as call forwarding, call transfer or conference calls, with the possibility of registering the number or numbers to which the call is routed; (e) collection of communications data concerning all types of connections, including fax, short messaging (SMS) or other; (f) access to information about the services provided to the interception subject (paragraph 2.1.2 of Addendum no. 1).
118. There are two types of interception: “total interception” and “statistical monitoring”. Total interception is the real-time interception of communications data and of the contents of all communications to or by the interception subject. Statistical monitoring is real-time monitoring of communications data only, with no interception of the content of communications. Communications data include the telephone number called, the start and end times of the connection, supplementary services used, location of the interception subject and his or her connection status (paragraphs 2.2 and 2.4 of Addendum no. 1).
119. The equipment installed must be capable of launching the interception of communications within thirty seconds of receiving a command from the remote-control terminal (paragraph 2.5 of Addendum no. 1).
120. Information about interception subjects or about the transmittal of any data to the remote-control terminal cannot be logged or recorded (paragraph 5.4 of Addendum no. 1).
121. The remote-control terminal receives a password from the mobile network operator giving it full access to the SORM. The remote-control terminal then changes the password so that unauthorized persons cannot gain access to the SORM. From the remote-control terminal, the SORM can be commanded, among others, to start interception in respect of a subscriber, interrupt or discontinue the interception, intercept a subscriber’s ongoing communication, and submit specified information about a subscriber (paragraph 3.1.2 of Addendum no. 3).
122. The remote-control centre receives the following automatic notifications about the interception subjects: short messages (SMS) sent or received by the interception subject, including their contents; a number being dialled; a connection being established; a connection being interrupted; use of supplementary services; a change in the subject’s connection status or location (paragraphs 3.1.4 of Addendum no. 3).
(b) Order no. 130
123. Order no. 130 on the installation procedures for technical facilities enabling the conduct of operational-search activities, issued by the Ministry of Communications on 25 July 2000, stipulated that communications service providers had to install equipment which met the technical requirements laid down in Order no. 70. The installation procedure and schedule had to be approved by the FSB (paragraph 1.4).
124. Communications service providers had to take measures to protect information regarding the methods and tactics employed in operational-search activities (paragraph 2.4)
125. Communications service providers had to ensure that any interception of communications or access to communications data was granted only pursuant to a court order and in accordance with the procedure established by the OSAA (paragraph 2.5).
126. Communications service providers did not have to be informed about interceptions in respect of their subscribers. Nor did they have to be provided with judicial orders authorising interceptions (paragraph 2.6).
127. Interceptions were carried out by the staff and technical facilities of the FSB and the agencies of the Ministry of the Interior (paragraph 2.7).
128. Paragraphs 1.4 and 2.6 of Order no. 130 were challenged by a Mr N. before the Supreme Court. Mr N. argued that the reference to Order no. 70 contained in paragraph 1.4 was unlawful, as Order no. 70 had not been published and was invalid. As to paragraph 2.6, it was incompatible with the Communications Act, which provided that communications service providers had an obligation to ensure the privacy of communications. On 25 September 2000 the Supreme Court found that the reference to Order no. 70 in paragraph 1.4 was lawful, as Order no. 70 was technical in nature and was therefore not subject to publication in a generally accessible official publication. It had therefore been published only in a specialised magazine. As to paragraph 2.6, the Supreme Court considered that it could be interpreted as requiring communications service providers to grant
law-enforcement agencies access to information about subscribers without judicial authorisation. Such a requirement was, however, incompatible with the Communications Act. The Supreme Court therefore found that paragraph 2.6 was unlawful and inapplicable.
129. On 25 October 2000 the Ministry of Communications amended Order no. 130 by repealing paragraph 2.6.
130. In reply to a request for information by the NGO “Civilian Control”, the Ministry of Communications stated, in a letter dated 20 August 2006, that the repealing of paragraph 2.6 of Order no. 130 did not mean that communications service providers had to be informed about operational-search measures in respect of a subscriber or be provided with a copy of the relevant decision granting judicial authorisation for such surveillance.
131. Order no. 130 was repealed on 16 January 2008 (see paragraph 134 below).
(c) Order no. 538
132. Order no. 538 on cooperation between communications service providers and law enforcement agencies, issued by the Government on 27 August 2005, provides that communications service providers must be diligent in updating databases containing information about subscribers and the services provided to them. That information must be stored for three years. Law-enforcement agencies must have remote access to the databases at all times (paragraph 12).
133. Databases must contain the following information about subscribers: (a) first name, patronymic and family name, home address and passport number for natural persons; (b) company name, address and list of persons having access to the terminal equipment with their names, patronymics and family names, home addresses and passport numbers for legal persons; (c) information about connections, traffic and payments (paragraph 14).
(d) Order no. 6
134. Order no. 6 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part I, issued by the Ministry of Communications on 16 January 2008, replaced Order no. 130.
135. It retained the requirement that communications service providers had to ensure transmittal to the relevant law-enforcement agency’s remote-control terminal of information about (a) subscribers’ numbers and identification codes; and (b) the contents of their communications. The information must be transmitted in real time following a request from the remote-control terminal. Communications service providers must also ensure that the subscriber’s location is identified (paragraphs 2, 3 and 5).
136. The remote-control terminal must have access to databases containing information about subscribers, including their numbers and identification codes (paragraphs 7 and 8).
137. Communications service providers must ensure that the interception subject remains unaware of the interception of his communications. Information about ongoing or past interceptions must be protected from unauthorised access by the employees of the communications service providers (paragraph 9).
(e) Order no. 73
138. Order no. 73 on requirements for telecommunications networks concerning the conduct of operational-search activities, Part II, issued by the Ministry of Communications on 27 May 2010, elaborates on certain requirements contained in Order no. 6. In particular, it provides that the equipment installed by communications service providers must ensure that agencies performing operational-search activities have access to all data transmitted through the telecommunications networks and are capable of selecting data and transmitting the selected data to its control terminal (paragraph 2).
III. RELEVANT INTERNATIONAL AND EUROPEAN INSTRUMENTS
A. United Nations
139. Resolution no. 68/167, on The Right to Privacy in the Digital Age, adopted by the General Assembly on 18 December 2013, reads as follows:
“The General Assembly,
…
4. Calls upon all States:
…
(c) To review their procedures, practices and legislation regarding the surveillance of communications, their interception and the collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law;
(d) To establish or maintain existing independent, effective domestic oversight mechanisms capable of ensuring transparency, as appropriate, and accountability for State surveillance of communications, their interception and the collection of personal data …”
B. Council of Europe
140. The Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data of 28 January 1981 (CETS No. 108, hereafter “Convention no. 108”) sets out standards for data protection in the sphere of automatic processing of personal data in the public and private sectors. It reads:
“Article 8 – Additional safeguards for the data subject
Any person shall be enabled:
a. to establish the existence of an automated personal data file, its main purposes, as well as the identity and habitual residence or principal place of business of the controller of the file;
b. to obtain at reasonable intervals and without excessive delay or expense confirmation of whether personal data relating to him are stored in the automated data file as well as communication to him of such data in an intelligible form;
c. to obtain, as the case may be, rectification or erasure of such data if these have been processed contrary to the provisions of domestic law giving effect to the basic principles set out in Articles 5 and 6 of this convention;
d. to have a remedy if a request for confirmation or, as the case may be, communication, rectification or erasure as referred to in paragraphs b and c of this article is not complied with.
Article 9 – Exceptions and restrictions
1. No exception to the provisions of Articles 5, 6 and 8 of this convention shall be allowed except within the limits defined in this article.
2. Derogation from the provisions of Articles 5, 6 and 8 of this convention shall be allowed when such derogation is provided for by the law of the Party and constitutes a necessary measure in a democratic society in the interests of:
a. protecting State security, public safety, the monetary interests of the State or the suppression of criminal offences;
b. protecting the data subject or the rights and freedoms of others …
Article 10 – Sanctions and remedies
Each Party undertakes to establish appropriate sanctions and remedies for violations of provisions of domestic law giving effect to the basic principles for data protection set out in this chapter.”
141. Convention no. 108 was ratified by Russia on 15 May 2013 and entered into force in respect of Russia on 1 September 2013. The instrument of ratification deposited by the Russian Federation on 15 May 2013 contains the following declaration:
“The Russian Federation declares that in accordance with subparagraph “a” of paragraph 2 of Article 3 of the Convention, it will not apply the Convention to personal data:
…
(b) falling under State secrecy in accordance with the legislation of the Russian Federation on State secrecy.
The Russian Federation declares that in accordance with subparagraph “c” of paragraph 2 of Article 3 of the Convention, it will apply the Convention to personal data which is not processed automatically, if the application of the Convention corresponds to the nature of the actions performed with the personal data without using automatic means.
The Russian Federation declares that in accordance with subparagraph “a” of paragraph 2 of Article 9 of the Convention, it retains the right to limit the right of the data subject to access personal data on himself for the purposes of protecting State security and public order.”
142. The Additional Protocol to the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, regarding supervisory authorities and transborder data flows of 8 November 2001 (CETS No. 181), signed but not ratified by Russia, provides as follows:
“Article 1 – Supervisory authorities
1. Each Party shall provide for one or more authorities to be responsible for ensuring compliance with the measures in its domestic law giving effect to the principles stated in Chapters II and III of the Convention and in this Protocol.
2. a. To this end, the said authorities shall have, in particular, powers of investigation and intervention, as well as the power to engage in legal proceedings or bring to the attention of the competent judicial authorities violations of provisions of domestic law giving effect to the principles mentioned in paragraph 1 of Article 1 of this Protocol.
b. Each supervisory authority shall hear claims lodged by any person concerning the protection of his/her rights and fundamental freedoms with regard to the processing of personal data within its competence.
3. The supervisory authorities shall exercise their functions in complete independence.
4. Decisions of the supervisory authorities, which give rise to complaints, may be appealed against through the courts …”
143. A Recommendation by the Committee of Ministers, regulating the use of personal data in the police sector, adopted on 17 September 1987 (No. R (87) 15), reads as follows:
“1.1. Each member state should have an independent supervisory authority outside the police sector which should be responsible for ensuring respect for the principles contained in this recommendation …
2.1. The collection of personal data for police purposes should be limited to such as is necessary for the prevention of a real danger or the suppression of a specific criminal offence. Any exception to this provision should be the subject of specific national legislation.
2.2. Where data concerning an individual have been collected and stored without his knowledge, and unless the data are deleted, he should be informed, where practicable, that information is held about him as soon as the object of the police activities is no longer likely to be prejudiced …
3.1. As far as possible, the storage of personal data for police purposes should be limited to accurate data and to such data as are necessary to allow police bodies to perform their lawful tasks within the framework of national law and their obligations arising from international law …
5.2.i. Communication of data to other public bodies should only be permissible if, in a particular case:
a. there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority, or if
b. these data are indispensable to the recipient to enable him to fulfil his own lawful task and provided that the aim of the collection or processing to be carried out by the recipient is not incompatible with the original processing, and the legal obligations of the communicating body are not contrary to this.
5.2.ii. Furthermore, communication to other public bodies is exceptionally permissible if, in a particular case:
a. the communication is undoubtedly in the interest of the data subject and either the data subject has consented or circumstances are such as to allow a clear presumption of such consent, or if
b. the communication is necessary so as to prevent a serious and imminent danger.
5.3.i. The communication of data to private parties should only be permissible if, in a particular case, there exists a clear legal obligation or authorisation, or with the authorisation of the supervisory authority …
6.4. Exercise of the rights [of the data subject] of access, rectification and erasure should only be restricted insofar as a restriction is indispensable for the performance of a legal task of the police or is necessary for the protection of the data subject or the rights and freedoms of others …
6.5. A refusal or a restriction of those rights should be reasoned in writing. It should only be possible to refuse to communicate the reasons insofar as this is indispensable for the performance of a legal task of the police or is necessary for the protection of the rights and freedoms of others.
6.6. Where access is refused, the data subject should be able to appeal to the supervisory authority or to another independent body which shall satisfy itself that the refusal is well founded.
7.1. Measures should be taken so that personal data kept for police purposes are deleted if they are no longer necessary for the purposes for which they were stored.
For this purpose, consideration shall in particular be given to the following criteria: the need to retain data in the light of the conclusion of an inquiry into a particular case; a final judicial decision, in particular an acquittal; rehabilitation; spent convictions; amnesties; the age of the data subject, particular categories of data.
7.2. Rules aimed at fixing storage periods for the different categories of personal data as well as regular checks on their quality should be established in agreement with the supervisory authority or in accordance with domestic law.
8. The responsible body should take all the necessary measures to ensure the appropriate physical and logical security of the data and prevent unauthorised access, communication or alteration. The different characteristics and contents of files should, for this purpose, be taken into account.”
144. A Recommendation by the Committee of Ministers on the protection of personal data in the area of telecommunication services, with particular reference to telephone services, adopted on 7 February 1995 (No. R (95) 4), reads in so far as relevant as follows:
“2.4. Interference by public authorities with the content of a communication, including the use of listening or tapping devices or other means of surveillance or interception of communications, must be carried out only when this is provided for by law and constitutes a necessary measure in a democratic society in the interests of:
a. protecting state security, public safety, the monetary interests of the state or the suppression of criminal offences;
b. protecting the data subject or the rights and freedoms of others.
2.5. In the case of interference by public authorities with the content of a communication, domestic law should regulate:
a. the exercise of the data subject’s rights of access and rectification;
b. in what circumstances the responsible public authorities are entitled to refuse to provide information to the person concerned, or delay providing it;
c. storage or destruction of such data.
If a network operator or service provider is instructed by a public authority to effect an interference, the data so collected should be communicated only to the body designated in the authorisation for that interference …”
C. European Union
145. Council Resolution of 17 January 1995 on the lawful interception of telecommunications (96/C 329/01) provides as follows:
“This section presents the requirements of law enforcement agencies relating to the lawful interception of telecommunications. These requirements are subject to national law and should be interpreted in accordance with applicable national policies…
1.3. Law enforcement agencies require that the telecommunications to and from a target service be provided to the exclusion of any telecommunications that do not fall within the scope of the interception authorization…
2. Law enforcement agencies require a real-time, fulltime monitoring capability for the interception of telecommunications. Call associated data should also be provided in real time. If call associated data cannot be made available in real time, law enforcement agencies require the data to be available as soon as possible upon call termination.
3. Law enforcement agencies require network operators/service providers to provide one or several interfaces from which the intercepted communications can be transmitted to the law enforcement monitoring facility. These interfaces have to be commonly agreed on by the interception authorities and the network operators/service providers. Other issues associated with these interfaces will be handled according to accepted practices in individual countries…
5. Law enforcement agencies require the interception to be designed and implemented to preclude unauthorized or improper use and to safeguard the information related to the interception…
5.2. Law enforcement agencies require network operators/service providers to ensure that intercepted communications are only transmitted to the monitoring agency specified in the interception authorization…”
146. The above requirements were confirmed and expounded in Council Resolution No. 9194/01 of 20 June 2001 on law-enforcement operational needs with respect to public telecommunication networks and services.
147. The judgment adopted by the Court of Justice of the European Union (the CJEU) on 8 April 2014 in the joint cases of Digital Rights Ireland and Seitinger and Others declared invalid the Data Retention Directive 2006/24/EC laying down the obligation on the providers of publicly available electronic communication services or of public communications networks to retain all traffic and location data for periods from six months to two years, in order to ensure that the data were available for the purpose of the investigation, detection and prosecution of serious crime, as defined by each Member State in its national law. The CJEU noted that, even though the directive did not permit the retention of the content of the communication, the traffic and location data covered by it might allow very precise conclusions to be drawn concerning the private lives of the persons whose data had been retained. Accordingly, the obligation to retain those data constituted in itself an interference with the right to respect for private life and communications guaranteed by Article 7 of the Charter of Fundamental Rights of the EU and the right to protection of personal data under Article 8 of the Charter. Furthermore, the access of the competent national authorities to the data constituted a further interference with those fundamental rights. The CJEU further held that the interference was particularly serious. The fact that data were retained and subsequently used without the subscriber or registered user being informed was likely to generate in the minds of the persons concerned the feeling that their private lives were the subject of constant surveillance. The interference satisfied an objective of general interest, namely to contribute to the fight against serious crime and terrorism and thus, ultimately, to public security. However, it failed to satisfy the requirement of proportionality. Firstly, the directive covered, in a generalised manner, all persons and all means of electronic communication as well as all traffic data without any differentiation, limitation or exception being made in the light of the objective of fighting against serious crime. It therefore entailed an interference with the fundamental rights of practically the entire European population. It applied even to persons for whom there was no evidence capable of suggesting that their conduct might have a link, even an indirect or remote one, with serious crime. Secondly, the directive did not contain substantive and procedural conditions relating to the access of the competent national authorities to the data and to their subsequent use. By simply referring, in a general manner, to serious crime, as defined by each Member State in its national law, the directive failed to lay down any objective criterion by which to determine which offences might be considered to be sufficiently serious to justify such an extensive interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter. Above all, the access by the competent national authorities to the data retained was not made dependent on a prior review carried out by a court or by an independent administrative body whose decision sought to limit access to the data and their use to what was strictly necessary for the purpose of attaining the objective pursued. Thirdly, the directive required that all data be retained for a period of at least six months, without any distinction being made between the categories of data on the basis of their possible usefulness for the purposes of the objective pursued or according to the persons concerned. The CJEU concluded that the directive entailed a wide-ranging and particularly serious interference with the fundamental rights enshrined in Articles 7 and 8 of the Charter, without such an interference being precisely circumscribed by provisions to ensure that it was actually limited to what was strictly necessary. The CJEU also noted that the directive did not provide for sufficient safeguards, by means of technical and organisational measures, to ensure effective protection of the data retained against the risk of abuse and against any unlawful access and use of those data.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
148. The applicant complained that the system of covert interception of mobile telephone communications in Russia did not comply with the requirements of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society 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.”
A. Admissibility
149. The Government submitted that the applicant could not claim to be a victim of the alleged violation of his right to respect for his private life or correspondence (see paragraphs 152 to 157 below). Moreover, he had not exhausted domestic remedies (see paragraphs 219 to 226 below).
150. The Court considers that the Government’s objections are so closely linked to the substance of the applicant’s complaint that they must be joined to the merits.
151. The Court further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The applicant’s victim status and the existence of an “interference”
(a) Submissions by the parties
(i) The Government
152. The Government submitted that the applicant could not claim to be a victim of the alleged violation of Article 8 of the Convention and that there had been no interference with his rights. He had not complained that his communications had been intercepted. The gist of his complaint before the domestic courts and the Court was that communications service providers had installed special equipment enabling the authorities to perform operational-search activities. In the Government’s opinion, the case of Orange Slovensko, A. S. v. Slovakia ((dec.), no. 43983/02, 24 October 2006) confirmed that installation of interception equipment, or even its financing, by private companies was not in itself contrary to the Convention.
153. The Government further submitted that Article 34 could not be used to lodge an application in the nature of an actio popularis; nor could it form the basis of a claim made in abstracto that a law contravened the Convention (they referred to Aalmoes and 112 Others v. the Netherlands (dec.), no. 16269/02, 25 November 2004). They argued that the approach to victim status established in the cases of Klass and Others v. Germany (6 September 1978, § 34, Series A no. 28) and Malone v. the United Kingdom (2 August 1984, § 64, Series A no. 82) – according to which an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had been in fact applied to him or her – could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him or her. An applicant was required to demonstrate that there was a “reasonable likelihood” that the security services had compiled and retained information concerning his or her private life (they referred to Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, no. 20271/92, Commission decision of 1 September 1993; Matthews v. the United Kingdom, no. 28576/95, Commission decision of 16 October 1996; Halford v. the United Kingdom, 25 June 1997, § 17, Reports of Judgments and Decisions 1997-III; Weber and Saravia v. Germany (dec.), no. 54934/00, §§ 4-6 and 78, ECHR 2006-XI; and Kennedy v. the United Kingdom, no. 26839/05, §§ 122 and 123, 18 May 2010).
154. The Government maintained that exceptions to the rule of “reasonable likelihood” were permissible only for special reasons. An individual could claim an interference as a result of the mere existence of legislation permitting secret surveillance measures in exceptional circumstances only, having regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him or her (they cited Kennedy, cited above, § 124). According to the Government, no such special reasons could be established in the present case.
155. Firstly, there was no “reasonable likelihood”, or indeed any risk whatsoever, that the applicant had been subjected to surveillance measures because he had not been suspected of any criminal offences. The fact that he was the editor-in-chief of a publishing company could not serve as a ground for interception under Russian law. The Government asserted that the applicant’s telephone conversations had never been intercepted. The applicant had not produced any proof to the contrary. The documents submitted by him in the domestic proceedings had concerned third persons and had not contained any proof that his telephone had been tapped.
156. Secondly, remedies were available at the national level to challenge both the alleged insufficiency of safeguards against abuse in Russian law and any specific surveillance measures applied to an individual. It was possible to request the Constitutional Court to review the constitutionality of the OSAA. It was also possible to lodge a complaint with the Supreme Court, as had been successfully done by Mr N., who had obtained a finding of unlawfulness in respect of a provision of the Ministry of Communications’ Order no. 130 (see paragraph 128 above). As regards Order no. 70, contrary to the applicant’s allegations, it had been duly published (see paragraph 181 below) and could therefore be challenged in courts. A person whose communications had been intercepted unlawfully without prior judicial authorisation could also obtain redress in a civil court. The Government referred to the Supreme Court’s judgment of 15 July 2009, which found that the installation of a video camera in the claimant’s office and the tapping of his office telephone had been unlawful because those surveillance measures had been carried out without prior judicial authorisation (see also paragraphs 219 to 224 below). Finally, Russian law provided for supervision of interception of communications by an independent body, the prosecutor’s office.
157. The Government concluded, in view of the above, that the present case was different from the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria (no. 62540/00, 28 June 2007) where the Court had refused to apply the “reasonable likelihood” test because of the absence of any safeguards against unlawful interception in Bulgaria. Given that Russian law provided for adequate and sufficient safeguards against abuse in the sphere of interception of communications, including available remedies, in the Government’ opinion, the applicant could not claim an interference as a result of the mere existence of legislation permitting secret surveillance. In the absence of a “reasonable likelihood” that his telephone communications had been intercepted, he could not claim to be a victim of the alleged violation of Article 8 of the Convention.
(ii) The applicant
158. The applicant submitted that he could claim to be a victim of a violation of Article 8 occasioned by the mere existence of legislation which allowed a system of secret interception of communications, without having to demonstrate that such secret measures had been in fact applied to him. The existence of such legislation entailed a threat of surveillance for all users of the telecommunications services and therefore amounted in itself to an interference with the exercise of his rights under Article 8. He relied in support of his position on the cases of Klass and Others (cited above, §§ 34 and 37), Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 58) and Kennedy (cited above, § 123).
159. The applicant maintained that the test of “reasonable likelihood” had been applied by the Court only in those cases where the applicant had alleged actual interception, while in the cases concerning general complaints about legislation and practice permitting secret surveillance measures the “mere existence” test established in the Klass and Others judgment had been applied (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 59, and Kennedy, cited above, §§ 122 and 123, with further references). In the case of Liberty and Others v. the United Kingdom (no. 58243/00, §§ 56 and 57, 1 July 2008), the Court found that the existence of powers permitting the authorities to intercept communications constituted an interference with the Article 8 rights of the applicants, since they were persons to whom these powers might have been applied. In the case of Kennedy (cited above, § 124) that test had been further elaborated to include the assessment of availability of any remedies at the national level and the risk of secret surveillance measures being applied to the applicant. Finally, in the case of Mersch and Others v. Luxemburg (nos. 10439/83 et al., Commission decision of 10 May 1985) the Commission found that in those cases where the authorities had no obligation to notify the persons concerned about the surveillance measures to which they had been subjected, the applicants could claim to be “victims” of a violation of the Convention on account of the mere existence of secret surveillance legislation, even though they could not allege in support of their applications that they had been subjected to an actual measure of surveillance.
160. The applicant argued that he could claim to be a victim of a violation of Article 8, on account both of the mere existence of secret surveillance legislation and of his personal situation. The OSAA, taken together with the FSB Act, the Communications Act and the Orders adopted by the Ministry of Communication, such as Order no. 70, permitted the security services to intercept, through technical means, any person’s communications without obtaining prior judicial authorisation for interception. In particular, the security services had no obligation to produce the interception authorisation to any person, including the communications service provider. The contested legislation therefore permitted blanket interception of communications.
161. No remedies were available under Russian law to challenge that legislation. Thus, as regards the possibility to challenge Order no. 70, the applicant referred to the Supreme Court’s decision of 25 September 2000 on a complaint by a Mr N. (see paragraph 128 above), finding that that Order was technical rather than legal in nature and was therefore not subject to official publication. He also submitted a copy of the decision of 24 May 2010 by the Supreme Commercial Court finding that the Orders by the Ministry of Communications requiring communications providers to install equipment enabling the authorities to perform operational-search activities were not subject to judicial review in commercial courts. The domestic proceedings brought by the applicant had shown that Order no. 70 could not be effectively challenged before Russian courts. Further, as far as the OSAA was concerned, the Constitutional Court had already examined its constitutionality on a number of occasions and had found that it was compatible with the Constitution. Finally, as regards the possibility to challenge individual surveillance measures, the applicant submitted that the person concerned was not notified about the interception, unless the intercepted material had been used as evidence in criminal proceedings against him. In the absence of notification, the domestic remedies were ineffective (see also paragraph 217 below).
162. As to his personal situation, the applicant submitted that he was a journalist and the chairperson of the St Petersburg branch of the Glasnost Defence Foundation, which monitored the state of media freedom and provided legal support to journalists whose professional rights had been violated (see paragraph 8 above). His communications were therefore at an increased risk of being intercepted. The applicant referred in that connection to the fundamental importance of protecting journalists’ sources, emphasised by the Grand Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands ([GC], no. 38224/03, § 50, 14 September 2010).
(b) The Court’s assessment
163. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting covert interception of mobile telephone communications and a risk of being subjected to interception measures, rather than as a result of any specific interception measures applied to him.
(i) Summary of the Court’s case-law
164. The Court has consistently held in its case-law that the Convention does not provide for the institution of an actio popularis and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, among other authorities, N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006; and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014). Accordingly, in order to be able to lodge an application in accordance with Article 34, an individual must be able to show that he or she was “directly affected” by the measure complained of. This is indispensable for putting the protection mechanism of the Convention into motion, although this criterion is not to be applied in a rigid, mechanical and inflexible way throughout the proceedings (see Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, § 96).
165. Thus, the Court has permitted general challenges to the relevant legislative regime in the sphere of secret surveillance in recognition of the particular features of secret surveillance measures and the importance of ensuring effective control and supervision of them. In the case of Klass and Others v. Germany the Court held that an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had been in fact applied to him. The relevant conditions were to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures (see Klass and Others, cited above, § 34). The Court explained the reasons for its approach as follows:
“36. The Court points out 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, Article 8 could to a large extent be reduced to a nullity. It is possible in such a situation for an individual to be treated in a manner contrary to Article 8, or even to be deprived of the right granted by that Article, without his being aware of it and therefore without being able to obtain a remedy either at the national level or before the Convention institutions …
The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 [currently Article 34], since otherwise Article 8 runs the risk of being nullified.
37. As to the facts of the particular case, the Court observes that the contested legislation institutes a system of surveillance under which all persons in the Federal Republic of Germany can potentially have their mail, post and telecommunications monitored, without their ever knowing this unless there has been either some indiscretion or subsequent notification in the circumstances laid down in the Federal Constitutional Court’s judgment … To that extent, the disputed legislation directly affects all users or potential users of the postal and telecommunication services in the Federal Republic of Germany. Furthermore, as the Delegates rightly pointed out, this menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8 …
38. Having regard to the specific circumstances of the present case, the Court concludes that each of the applicants is entitled to ‘(claim) to be the victim of a violation’ of the Convention, even though he is not able to allege in support of his application that he has been subject to a concrete measure of surveillance. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention’s provisions …”
166. Following the Klass and Others case, the case-law of the Convention organs developed two parallel approaches to victim status in secret surveillance cases.
167. In several cases the Commission and the Court held that the test in Klass and Others could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him or her. An applicant could not, however, be reasonably expected to prove that information concerning his or her private life had been compiled and retained. It was sufficient, in the area of secret measures, that the existence of practices permitting secret surveillance be established and that there was a reasonable likelihood that the security services had compiled and retained information concerning his or her private life (see Esbester, cited above; Redgrave, cited above; Christie v. the United Kingdom, no. 21482/93, Commission decision of 27 June 1994; Matthews, cited above; Halford, cited above, §§ 47 and 55-57; and Iliya Stefanov v. Bulgaria, no. 65755/01, §§ 49 and 50, 22 May 2008). In all of the above cases the applicants alleged actual interception of their communications. In some of them they also made general complaints about legislation and practice permitting secret surveillance measures (see Esbester, Redgrave, Matthews, and Christie, all cited above).
168. In other cases the Court reiterated the Klass and Others approach that the mere existence of laws and practices which permitted and established a system for effecting secret surveillance of communications entailed a threat of surveillance for all those to whom the legislation might be applied. This threat necessarily affected freedom of communication between users of the telecommunications services and thereby amounted in itself to an interference with the exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken against them (see Malone, cited above, § 64; Weber and Saravia, cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 58, 59 and 69; Liberty and Others, cited above, §§ 56 and 57; and Iordachi and Others v. Moldova, no. 25198/02, §§ 30-35, 10 February 2009). In all of the above cases the applicants made general complaints about legislation and practice permitting secret surveillance measures. In some of them they also alleged actual interception of their communications (see Malone, cited above, § 62; and Liberty and Others, cited above, §§ 41 and 42).
169. Finally, in its most recent case on the subject, Kennedy v. the United Kingdom, the Court held that sight should not be lost of the special reasons justifying the Court’s departure, in cases concerning secret measures, from its general approach which denies individuals the right to challenge a law in abstracto. The principal reason was to ensure that the secrecy of such measures did not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and the Court. In order to assess, in a particular case, whether an individual can claim an interference as a result of the mere existence of legislation permitting secret surveillance measures, the Court must have regard to the availability of any remedies at the national level and the risk of secret surveillance measures being applied to him or her. Where there is no possibility of challenging the alleged application of secret surveillance measures at domestic level, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified. In such cases, even where the actual risk of surveillance is low, there is a greater need for scrutiny by this Court (see Kennedy, cited above, § 124).
(ii) Harmonisation of the approach to be taken
170. The Court considers, against this background, that it is necessary to clarify the conditions under which an applicant can claim to be the victim of a violation of Article 8 without having to prove that secret surveillance measures had in fact been applied to him, so that a uniform and foreseeable approach may be adopted.
171. In the Court’s view the Kennedy approach is best tailored to the need to ensure that the secrecy of surveillance measures does not result in the measures being effectively unchallengeable and outside the supervision of the national judicial authorities and of the Court. Accordingly, the Court accepts that an applicant can claim to be the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting secret surveillance measures, if the following conditions are satisfied. Firstly, the Court will take into account the scope of the legislation permitting secret surveillance measures by examining whether the applicant can possibly be affected by it, either because he or she belongs to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies. As the Court underlined in Kennedy, where the domestic system does not afford an effective remedy to the person who suspects that he or she was subjected to secret surveillance, widespread suspicion and concern among the general public that secret surveillance powers are being abused cannot be said to be unjustified (see Kennedy, cited above, § 124). In such circumstances the menace of surveillance can be claimed in itself to restrict free communication through the postal and telecommunication services, thereby constituting for all users or potential users a direct interference with the right guaranteed by Article 8. There is therefore a greater need for scrutiny by the Court and an exception to the rule, which denies individuals the right to challenge a law in abstracto, is justified. In such cases the individual does not need to demonstrate the existence of any risk that secret surveillance measures were applied to him. By contrast, if the national system provides for effective remedies, a widespread suspicion of abuse is more difficult to justify. In such cases, the individual may claim to be a victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures only if he is able to show that, due to his personal situation, he is potentially at risk of being subjected to such measures.
172. The Kennedy approach therefore provides the Court with the requisite degree of flexibility to deal with a variety of situations which might arise in the context of secret surveillance, taking into account the particularities of the legal systems in the member States, namely the available remedies, as well as the different personal situations of applicants.
(iii) Application to the present case
173. It is not disputed that mobile telephone communications are covered by the notions of “private life” and “correspondence” in Article 8 § 1 (see, for example, Liberty and Others, cited above, § 56).
174. The Court observes that the applicant in the present case claims that there has been an interference with his rights as a result of the mere existence of legislation permitting secret surveillance measures and a risk of being subjected to such measures, rather than as a result of any specific surveillance measures applied to him.
175. The Court notes that the contested legislation institutes a system of secret surveillance under which any person using mobile telephone services of Russian providers can have his or her mobile telephone communications intercepted, without ever being notified of the surveillance. To that extent, the legislation in question directly affects all users of these mobile telephone services.
176. Furthermore, for the reasons set out below (see paragraphs 286 to 300), Russian law does not provide for effective remedies for a person who suspects that he or she was subjected to secret surveillance.
177. In view of the above finding, the applicant does not need to demonstrate that, due to his personal situation, he is at risk of being subjected to secret surveillance.
178. Having regard to the secret nature of the surveillance measures provided for by the contested legislation, the broad scope of their application, affecting all users of mobile telephone communications, and the lack of effective means to challenge the alleged application of secret surveillance measures at domestic level, the Court considers an examination of the relevant legislation in abstracto to be justified.
179. The Court therefore finds that the applicant is entitled to claim to be the victim of a violation of the Convention, even though he is unable to allege that he has been subject to a concrete measure of surveillance in support of his application. For the same reasons, the mere existence of the contested legislation amounts in itself to an interference with the exercise of his rights under Article 8. The Court therefore dismisses the Government’s objection concerning the applicant’s lack of victim status.
2. The justification for the interference
(a) Submissions by the parties
(i) Accessibility of domestic law
180. The applicant submitted that the addendums to Order no. 70 describing the technical requirements for the equipment to be installed by communications service providers had never been officially published and were not accessible to the public. In the applicant’s opinion, in so far as they determined the powers of the law-enforcement authorities with regard to secret surveillance, they affected citizens’ rights and ought therefore to have been published. The fact that the applicant had eventually had access to the addendums in the domestic proceedings could not remedy the lack of an official publication (he referred to Kasymakhunov and Saybatalov v. Russia, nos. 26261/05 and 26377/06, § 92, 14 March 2013). Citizens should not be required to engage judicial proceedings to obtain access to regulations applicable to them. The Court had already found that it was essential to have clear, detailed and accessible rules on the application of secret measures of surveillance (Shimovolos v. Russia, no. 30194/09, § 68, 21 June 2011).
181. The Government submitted that Order no. 70 was technical in nature and was not therefore subject to official publication. It had been published in a specialised magazine, SvyazInform, in issue no. 6 of 1999. It was also available in the ConsultantPlus internet legal database, and was accessible without charge. The applicant had submitted a copy of the Order with its addendums to the Court, which showed that he had been able to obtain access to it. The domestic law was therefore accessible.
(ii) Scope of application of secret surveillance measures
182. The applicant submitted that the Court had already found that the OSAA did not meet the “foreseeability” requirement because the legal discretion of the authorities to order “an operative experiment” involving recording of private communications through a radio-transmitting device was not subject to any conditions, and the scope and the manner of its exercise were not defined (see Bykov v. Russia [GC], no. 4378/02, § 80, 10 March 2009). The present case was similar to the Bykov case. In particular, 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, pickpocketing.
183. The Government submitted that interception of communications might be conducted only following the receipt of information that a criminal offence had been committed or was ongoing, or was being plotted; about persons conspiring to commit, or committing, or having committed a criminal offence; or about events or activities endangering the national, military, economic or ecological security of the Russian Federation. The Constitutional Court had held in its ruling of 14 July 1998 that collecting information about a person’s private life was permissible only with the aim of preventing, detecting and investigating criminal offences or in pursuance of other lawful aims listed in the OSAA.
184. Only offences of medium severity, serious offences and especially serious offences might give rise to an interception order and only persons suspected of such offences or who might have information about such offences could be subject to interception measures. The Government submitted in this connection that the Court had already found that surveillance measures in respect of a person who was not suspected of any offence could be justified under the Convention (see Greuter v. the Netherlands (dec.), no. 40045/98, 19 March 2002).
185. Further, in respect of interceptions for the purposes of protecting national security, the Government argued that the requirement of “foreseeability” of the law did not go so far as to compel States to enact legal provisions listing in detail all conduct that might prompt a decision to subject an individual to surveillance on “national security” grounds (see Kennedy, cited above, § 159).
(iii) The duration of secret surveillance measures
186. The applicant submitted that the OSAA did not explain under which circumstance interception could be extended beyond six months. Nor did it establish the maximum duration of interception measures.
187. The Government submitted that under Russian law interception might be authorised by a judge for a maximum period of six months and might be extended if necessary. It had to be discontinued if the investigation was terminated. They argued that it was reasonable to leave the duration of the interception to the discretion of the domestic authorities, having regard to the complexity and the duration of the investigation in a specific case (see Kennedy, cited above). They also referred to the case of Van Pelt v. the Netherlands (no. 20555/92, Commission decision of 6 April 1994), where the Commission had found that the tapping of the applicant’s telephone for almost two years had not violated the Convention.
(iv) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data
188. The applicant further submitted that the OSAA did not specify the procedures to be followed for examining, storing, accessing or using the intercept data or the precautions to be taken when communicating the data to other parties. It provided that the data had to be destroyed within six months, unless that data were needed in the interest of the service or of justice. There was however no definition of what the “interest of the service or of justice” meant. Russian law also gave complete freedom to the trial judge as to whether to store or to destroy data used in evidence after the end of the trial.
189. The Government submitted that the OSAA required that records of intercepted communications had to be stored under conditions excluding any risk of their being listened to or copied by unauthorised persons. The judicial decision authorising interception of communications, the materials that served as a basis for that decision and the data collected as result of interception constituted a State secret and were to be held in the exclusive possession of the State agency performing interceptions. If it was necessary to transmit them to an investigator, a prosecutor or a court, they could be declassified by the heads of the agencies conducting operational-search activities. Interception authorisations were declassified by the courts which had issued them. The procedure for transmitting the data collected in the course of operational-search activities to the competent investigating authorities or a court was set out in the Ministry of the Interior’s Order of 27 September 2013 (see paragraph 58 above).
190. The data collected in the course of operational-search activities were to be stored for one year and then destroyed, unless it was needed in the interests of the service or of justice. Recordings were to be stored for six months and then destroyed. Russian law was therefore foreseeable and contained sufficient safeguards.
(v) Authorisation of secret surveillance measures
(a) The applicant
191. The applicant submitted that although domestic law required prior judicial authorisation for interceptions, the authorisation procedure did not provide for sufficient safeguards against abuse. Firstly, in urgent cases communications could be intercepted without judicial authorisation for up to forty-eight hours. Secondly, in contrast to the CCrP, the OSAA did not provide for any requirements concerning the content of the interception authorisation. In particular, it did not require that the interception subject be clearly specified in the authorisation by name, telephone number or address (see, by contrast, the United Kingdom’s and Bulgarian legislation reproduced in Kennedy, cited above, §§ 41 and 160; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 13). Nor did domestic law require that the authorisation specify which communications, or types of communications, should be recorded in order to limit the law-enforcement authorities’ discretion to determine the scope of surveillance measures. Russian law did not establish any special rules for surveillance in sensitive situations, for example where the confidentiality of journalists’ sources was at stake, or where surveillance concerned privileged lawyer-client communications.
192. The applicant further submitted that the domestic law did not impose any requirement on the judge to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test. The requesting authorities had no obligation to attach any supporting materials to the interception requests. Moreover, the OSAA expressly prohibited submission to the judge of certain materials – those containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures – thereby making it impossible for the judge to effectively verify the existence of a “reasonable suspicion”. Russian law did not require that the judge should authorise interception only when it was impossible to achieve the legitimate aims by other less intrusive means.
193. In support of his allegation that the judges did not verify the existence of a “reasonable suspicion” against the person concerned and did not apply the “necessity” and “proportionality” test, the applicant produced copies of analytical notes issued by three District Courts in different Russian regions (the Tambov region, the Tula region and the Dagestan Republic). The courts summarised their own case-law concerning operational-search measures involving interference with the privacy of communications or privacy of the home for the period from 2010 to 2013. One of the courts noted that it refused authorisation to carry out an operational-search measure if it did not appear on the list of operational-search measures in the OSAA, if the request for authorisation was not signed by a competent official or was not reasoned, or if the case fell under statutory restrictions on the use of that measure (for example, relating to the person’s status or to the nature of the offence). Authorisation was given if all of the above conditions were met. Another court stated that authorisation could also be refused if the request was insufficiently reasoned, that is, if it did not contain sufficient information permitting the judge to ascertain that the measure was lawful and justified. The third court stated that it granted authorisation if that was requested by the law-enforcement authorities. It never refused a request for authorisation. All three courts considered that the request was sufficiently reasoned if it referred to the existence of information listed in section 8(2) of the OSAA (see paragraph 31 above). One of the courts noted that supporting materials were never attached to requests for authorisation; another court noted that some, but not all, of the requests were accompanied by supporting materials, while the third court stated that all requests were accompanied by supporting materials. In all three courts the judges never requested the law-enforcement authorities to submit additional supporting materials, such as materials confirming the grounds for the interception or proving that the telephone numbers to be tapped belonged to the person concerned. Two courts granted interception authorisations in respect of unidentified persons, one of them specifying that such authorisations only concerned collection of data from technical channels of communication. Such authorisations did not mention a specific person or a telephone number to be tapped, but authorised interception of all telephone communications in the area where a criminal offence had been committed. One court never gave such authorisations. Two courts noted that authorisations always indicated the duration for which the interception was authorised, while one court stated that the duration of interception was not indicated in the authorisations issued by it. Finally, none of the three courts had examined any complaints from persons whose communications had been intercepted.
194. The applicant also produced official statistics by the Supreme Court for the period from 2009 to 2013. It could be seen from those statistics that in 2009 Russian courts granted 130,083 out of 132,821 requests under the CCrP and 245,645 out of 246,228 requests under the OSAA (99%). In 2010 the courts allowed 136,953 out of 140,372 interception requests under the CCrP and 276,682 out of 284,137 requests under the OSAA. In 2011 the courts allowed 140,047 out of 144,762 interception requests under the CCrP and 326,105 out of 329,415 requests under the OSAA. In 2012 they granted 156,751 out of 163,469 interception requests under the CCrP (95%) and 372,744 out of 376,368 requests under the OSAA (99%). In 2013 the courts allowed 178,149 out of 189,741 interception requests lodged under the CCrP (93%) and 416,045 out of 420,242 interception requests lodged under the OSAA (99%). The applicant drew the Court’s attention to the fact that the number of interception authorisations had almost doubled between 2009 and 2013. He also argued that the very high percentage of authorisations granted showed that the judges did not verify the existence of a “reasonable suspicion” against the interception subject and did not exercise careful and rigorous scrutiny. As a result interceptions were ordered in respect of vast numbers of people in situations where the information could have been obtained by other less intrusive means.
195. The applicant concluded from the above that the authorisation procedure was defective and was therefore not capable of confining the use of secret surveillance measures to what was necessary in a democratic society.
196. As regards safeguards against unauthorised interceptions, the applicant submitted that the law-enforcement authorities were not required under domestic law to show judicial authorisation to the communications service provider before obtaining access to a person’s communications. All judicial authorisations were classified documents, kept in the exclusive possession of law-enforcement authorities. An obligation to forward an interception authorisation to the communications service provider was mentioned only once in Russian law in connection with monitoring of communications-related data under the CCrP (see paragraph 48 above). The equipment the communications service providers had installed pursuant to the Orders issued by the Ministry of Communications, in particular the unpublished addendums to Order No. 70, allowed the law-enforcement authorities direct and unrestricted access to all mobile telephone communications of all users. The communications service providers also had an obligation under Order no. 538 to create databases storing for three years information about all subscribers and the services provided to them. The secret services had direct remote access to those databases. The manner in which the system of secret surveillance thus operated gave the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. The necessity to obtain prior judicial authorisation therefore arose only in those cases where the intercepted data had to be used as evidence in criminal proceedings.
197. The applicant produced documents showing, in his view, that law-enforcement officials unlawfully intercepted telephone communications without prior judicial authorisation and disclosed the records to unauthorised persons. For example, he produced printouts from the Internet containing transcripts of the private telephone conversations of politicians. He also submitted news articles describing criminal proceedings against several high-ranking officers from the police technical department. The officers were suspected of unlawfully intercepting the private communications of politicians and businessmen in return for bribes from their political or business rivals. The news articles referred to witness statements to the effect that intercepting communications in return for bribes was a widespread practice and that anyone could buy a transcript of another person’s telephone conversations from the police.
(ß) The Government
198. The Government submitted that any interception of telephone or other communications had to be authorised by a court. The court took a decision on the basis of a reasoned request by a law-enforcement authority. The burden of proof was on the requesting authority to justify the necessity of the interception measures. To satisfy that burden of proof, the requesting authorities enclosed with their request all relevant supporting materials, except materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures. That exception was justified by the necessity to ensure the security and protection of undercover agents and police informers and their family members and was therefore compatible with the Convention.
199. The Government further referred to the Plenary Supreme Court’s Ruling of 27 June 2013, which explained to the lower courts that any restrictions on human rights and freedoms had to be prescribed by law and be necessary in a democratic society, that is, proportionate to a legitimate aim. Courts were instructed to rely on established facts, verify the existence of relevant and sufficient reasons to justify a restriction on an individual’s right and balance the interests of the individual whose rights were restricted against the interests of other individuals, the State and society. The OSAA explicitly required the courts to give reasons for the decision to authorise interception. In line with the Constitutional Court’s decision of 8 February 2007 (see paragraph 42 above), the interception authorisation was to refer to the specific grounds for suspecting the person in respect of whom operational-search measures were requested of a criminal offence or of activities endangering national, military, economic or ecological security. In its decision of 2 October 2003 (see paragraph 41 above), the Constitutional Court also held that judges had an obligation to examine the materials submitted to them carefully and thoroughly.
200. According to the Government, in practice, each interception authorisation specified the State agency which was responsible for performing the interception, the grounds for conducting the surveillance measures and the reasons why they were necessary, a reference to applicable legal provisions, the person whose communications were to be intercepted, the grounds for suspecting that person’s involvement in the commission of a specific criminal offence, that person’s telephone number or IMEI code, the period of time for which the authorisation was granted and other necessary information. In exceptional circumstances it was permissible to authorise the interception of communications of unidentified persons. As a rule, in such cases a judge authorised the collection of data from technical channels of communication in order to identify the persons present at a specific location at the time that a criminal offence was committed there. That practice was compatible with the principles established in the Court’s case-law, because in such cases the interception authorisation specified a single set of premises (locations) as the premises (locations) in respect of which the authorisation was ordered (they referred to Kennedy, cited above).
201. Russian law permitted communications to be intercepted without prior judicial authorisation in cases of urgency. A judge had to be informed of any such case within twenty-four hours and judicial authorisation for continuing the interception had to be obtained within forty-eight hours. According to the Government, the judge had to examine the lawfulness of such interception even in those cases when it had already been discontinued. They referred to an appeal judgment of 13 December 2013, in a criminal case in which the Supreme Court declared inadmissible as evidence recordings of telephone conversations obtained under the urgent procedure without prior judicial authorisation. The Supreme Court had held that although a judge had been informed about the interception, no judicial decision on its lawfulness and necessity had ever been issued.
(vi) Supervision of the implementation of secret surveillance measures
(a) The applicant
202. Regarding supervision of interceptions, the applicant argued at the outset that in Russia the effectiveness of any supervision was undermined by the absence of an obligation on the intercepting authorities to keep records of interceptions carried out by them. Moreover, Order no. 70 explicitly provided that information about interceptions could not be logged or recorded.
203. The applicant further submitted that in Russia neither the judge who had issued the interception authorisation nor any other independent official qualified for judicial office had power to supervise its implementation, and in particular to review whether the surveillance remained within the scope determined by the interception authorisation and complied with various requirements contained in domestic law.
204. Domestic law did not set out any procedures for the supervision of interceptions by the President, Parliament and the Government. They certainly had no powers to supervise the implementation of interception measures in specific cases.
205. As regards supervision by the Prosecutor General and competent low-level prosecutors, they could not be considered independent because of their position within the criminal justice system and their prosecuting functions. In particular, prosecutors gave their approval to all interception requests lodged by investigators in the framework of criminal proceedings and participated in the related court hearings. They could then use the data obtained as a result of the interception in the framework of their prosecuting functions, in particular by presenting it as evidence during a trial. There was therefore a conflict of interest with the prosecutor performing the dual function of a party to a criminal case and an authority supervising interceptions.
206. The applicant further submitted that the prosecutors’ supervisory functions were limited because certain materials, in particular those revealing the identity of undercover agents or the tactics, methods and means used by the security services, were outside the scope of their supervision. The prosecutors’ supervisory powers were also limited in the area of counter-intelligence, where inspections could be carried out only following an individual complaint. Given the secrecy of interception measures and the lack of any notification of the person concerned, such individual complaints were unlikely to be lodged, with the result that counter-intelligence-related surveillance measures de facto escaped any supervision by prosecutors. It was also significant that prosecutors had no power to cancel an interception authorisation, to discontinue unlawful interceptions or to order the destruction of unlawfully obtained data.
207. Further, prosecutors’ biannual reports were not published or publicly discussed. The reports were classified documents and contained statistical information only. They did not contain any substantive analysis of the state of legality in the sphere of operational-search activities or any information about what breaches of law had been detected and what measures had been taken to remedy them. Moreover, the reports amalgamated together all types of operational-search activities, without separating interceptions from other measures.
(ß) The Government
208. The Government submitted that supervision of operational-search activities, including interceptions of telephone communications, was exercised by the President, the Parliament and the Government. In particular, the President determined the national security strategy and appointed and dismissed the heads of all law-enforcement agencies. There was also a special department within the President’s Administration which supervised the activities of the law-enforcement agencies, including operational-search activities. That department consisted of officials from the Interior Ministry and the FSB who had the appropriate level of security clearance. Parliament participated in the supervision process by adopting and amending laws governing operational-search activities. It could also form committees and commissions and held parliamentary hearings on all issues, including those relating to operational-search activities, and could hear the heads of law-enforcement agencies if necessary. The Government adopted decrees and orders governing operational-search activities and allocated the budgetary funds to the law-enforcement agencies.
209. Supervision was also exercised by the Prosecutor General and competent low-level prosecutors who were independent from the federal, regional and local authorities. The Prosecutor General and his deputies were appointed and dismissed by the Federation Council, the upper house of Parliament. Prosecutors were not entitled to lodge interception requests. Such requests could be lodged either by the State agency performing operational-search activities in the framework of the OSAA, or by the investigator in the framework of the CCrP. The prosecutor could not give any instructions to the investigator. In the course of a prosecutor’s inspection, the head of the intercepting agency had an obligation to submit all relevant materials to the prosecutor at his or her request and could be held liable for the failure to do so. The prosecutors responsible for supervision of operational-search activities submitted six-monthly reports to the Prosecutor General. The reports did not however analyse interceptions separately from other operational-search measures.
(vii) Notification of secret surveillance measures
(a) The applicant
210. The applicant further submitted that Russian law did not provide that a person whose communications had been intercepted was to be notified before, during or after the interception. He conceded that it was acceptable not to notify the person before or during the interception, since the secrecy of the measure was essential to its efficacy. He argued, however, that such notification was possible after the interception had ended, “as soon as it could be made without jeopardising the purpose of the restriction” (he referred to Klass and Others, cited above). In Russia the person concerned was not notified at any point. He or she could therefore learn about the interception only if there was a leak or if criminal proceedings were opened against him or her, and the intercepted data were used in evidence.
211. With regard to the possibility of obtaining access to the data collected in the course of interception, the applicant submitted that such access was possible only in very limited circumstances. If criminal proceedings had never been opened or if the charges had been dropped on other grounds than those listed in the OSAA, the person concerned was not entitled to have access. Furthermore, before obtaining access, the claimant had to prove that his or her communications had been intercepted. Given the secrecy of the surveillance measures and the lack of notification, such burden of proof was impossible to satisfy unless the information about the interception had been leaked. Even after satisfying all those preconditions, the person could only receive “information about the data collected” rather than obtain access to the data themselves. Finally, only information that did not contain State secrets could be disclosed. Given that under the OSAA all data collected in the course of operational-search activities constituted a State secret and the decision to declassify it belonged to the head of the intercepting authority, access to interception-related documents depended entirely on the intercepting authorities’ discretion.
212. A refusal to grant access to the collected data could be appealed against to a court and the OSAA required the intercepting authorities to produce, at the judge’s request, “operational-search materials containing information about the data to which access [had been] refused”. It was significant that the intercepting authorities were required to submit “information about the data” rather than the data themselves. Materials containing information about undercover agents or police informers could not be submitted to the court and were thereby excluded from the scope of judicial review.
(ß) The Government
213. The Government submitted that under Russian law, an individual subject to secret surveillance measures did not have to be informed of those measures at any point. The Constitutional Court held (see paragraph 40 above) that in view of the necessity to keep the surveillance measures secret, the principles of a public hearing and adversarial proceedings were not applicable to the interception authorisation proceedings. The person concerned was therefore not entitled to participate in the authorisation proceedings or to be informed about the decision taken.
214. After the termination of the investigation the defendant was entitled to study all the materials in the criminal case-file, including the data obtained in the course of operational-search activities. Otherwise, in cases where the investigator decided not to open criminal proceedings against the interception subject or to discontinue the criminal proceedings on the ground that the alleged offence had not been committed or one or more elements of a criminal offence were missing, the interception subject was entitled to request and receive information about the data collected. A refusal to provide such information could be challenged before a court, which had power to order the disclosure of information if it considered the refusal to be ill-founded. The Government submitted a copy of the decision of 4 August 2009 by the Alekseyevskiy District Court of the Belgorod Region, ordering that the police provide, within one month, an interception subject with information about the data collected about him in the course of the interception “to the extent permitted by the requirements of confidentiality and with the exception of data which could enable State secrets to be disclosed”.
215. The Government argued that Russian law was different from the Bulgarian law criticised by the Court in its judgment of Association for European Integration and Human Rights and Ekimdzhiev (cited above, § 91) because it provided for a possibility to declassify the interception materials and to grant the person concerned access to them. In support of that allegation they referred to the criminal conviction judgment of 11 July 2012 by the Zabaykalsk Regional Court. That judgment – a copy of which was not provided to the Court – relied, according to the Government, on a judicial decision authorising the interception of the defendant’s telephone communications which had been declassified and submitted to the trial judge at his request. The Government also referred to two further judgments – by the Presidium of the Krasnoyarsk Regional Court and the Presidium of the Supreme Court of the Mariy-El Republic – quashing by way of supervisory review judicial decisions authorising interception of communications. They did not submit copies of the judgments.
(viii) Available remedies
(a) The applicant
216. The applicant submitted that the questions of notification of surveillance measures and of the effectiveness of remedies before the courts were inextricably linked, since there was in principle little scope for recourse to the courts by the individual concerned unless the latter was advised of the measures taken without his or her knowledge and was thus able to challenge their legality retrospectively (he referred to Weber and Saravia, cited above).
217. The applicant argued that remedies available under Russian law were ineffective. As regards the possibility for the subject of surveillance to apply for judicial review of the measures applied, the burden of proof was on the claimant to demonstrate that his or her telephone had been tapped. However, since those monitored were not informed about the surveillance measures unless charged with a criminal offence, the burden of proof was impossible to satisfy. The copies of domestic judgments submitted by the Government concerned searches and seizures, that is, operative-search measures which were known to the person concerned (see paragraphs 220, 221 and 223 below). The applicant knew of no publicly available judicial decisions where an interception subject’s complaint about unlawful interception had been allowed. It was also significant that in none of the judgments produced by the Government had the domestic courts assessed the proportionality of the contested operative-search measures. The domestic proceedings brought by the applicant had also clearly demonstrated that remedies available under Russian law were ineffective. Moreover, in the case of Avanesyan v. Russia (no. 41152/06, 18 September 2014) the Court had already found that there were no effective remedies under Russian law to challenge operational-search measures.
218. Lastly, the applicant submitted that an interception subject or the communications service providers could not challenge the ministerial orders governing secret interceptions of communications, because those orders were considered to be technical rather than legal in nature and were therefore not subject to judicial review, as demonstrated by the decisions mentioned in paragraph 161 above.
(ß) The Government
219. The Government argued that in Russia a person claiming that his or her rights had been or were being violated by a State official performing operational-search activities was entitled to complain to the official’s superior, the prosecutor or a court, in accordance with section 5 of the OSAA (see paragraph 83 above).
220. As explained by the Plenary Supreme Court, if the person concerned learned about the interception, he or she could apply to a court of general jurisdiction in accordance with the procedure established by Chapter 25 of the Code of Civil Procedure (see paragraph 92 above). According to the Government, a claimant did not have to prove that his or her right had been breached as a result of the interception measures. The burden of proof was on the intercepting authorities to show that the interception measures had been lawful and justified. Russian law provided that if a breach of the claimant’s rights was found by a court in civil proceedings, the court had to take measures to remedy the violation and compensate the damage (see paragraph 97 above). The Government submitted copies of two judicial decisions under Chapter 25 of the Code of Civil Procedure, declaring searches and seizures of objects or documents unlawful and ordering the police to take specific measures to remedy the violations.
221. Furthermore, according to the Government, the interception subject was also entitled to lodge a supervisory-review complaint against the judicial decision authorising the interception, as explained by the Constitutional Court in its decision of 15 July 2008 (see paragraph 43 above). He or she was likewise entitled to lodge an appeal or a cassation appeal.
222. If the interception was carried out in the framework of criminal proceedings, the person concerned could also lodge a complaint under Article 125 of the CCrP. The Government referred to the Supreme Court’s decision of 26 October 2010 quashing, by way of supervisory review, the lower courts’ decisions to declare inadmissible K.’s complaint under Article 125 of the CCrP about the investigator’s refusal to give her a copy of the judicial decision authorising interception of her communications. The Supreme Court held that her complaint was to be examined under Article 125 of the CCrP, despite the fact that she had been already convicted, and that she was entitled to receive a copy of the interception authorisation. The Government submitted copies of ten judicial decisions allowing complaints under Article 125 of the CCrP about unlawful searches and seizures of objects or documents. They also produced a copy of a judgment acquitting a defendant on appeal after finding that his conviction at first instance had been based on inadmissible evidence obtained as a result of an unlawful test purchase of drugs.
223. The Government further submitted that the person concerned could apply for compensation under Article 1069 of the Civil Code (see paragraph 102 above). That Article provided for compensation of pecuniary and non-pecuniary damage caused to an individual or a legal entity by unlawful actions by State and municipal bodies and officials, provided that the body’s or the official’s fault had been established. Compensation for non-pecuniary damage was determined in accordance with the rules set out in Articles 1099-1101 of the Civil Code (see paragraphs 103 and 104 above). The Government highlighted, in particular, that non-pecuniary damage caused through dissemination of information which was damaging to honour, dignity or reputation could be compensated irrespective of the tortfeasor’s fault. The Government submitted a copy of a decision of 9 December 2013 by the Vichuga Town Court of the Ivanovo Region, awarding compensation in respect of non-pecuniary damage for unlawful interception of a suspect’s telephone conversations after the recordings obtained as a result of that interception had been declared inadmissible as evidence by the trial court. The Government also submitted a judicial decision awarding compensation for an unlawful search and seizure of documents and a judicial decision awarding compensation to an acquitted defendant for unlawful prosecution.
224. Russian law also provided for criminal remedies for abuse of power (Articles 285 and 286 of the Criminal Code), unauthorised collection or dissemination of information about a person’s private and family life (Article 137 of the Criminal Code) and breach of citizens’ right to privacy of communications (Article 138 of the Criminal Code) (see paragraphs 19 to 22 above). The Government referred in that connection to the Supreme Court’s judgment of 24 October 2002, convicting a certain E.S. of an offence under Article 138 of the Criminal Code for inciting an official to supply him with the names of the owners of several telephone numbers and to provide him with call detail records in respect of those telephone numbers. They also referred to the Supreme Court’s judgment of 15 March 2007, convicting a customs official of an offence under Article 138 of the Criminal Code for intercepting the telephone communications of a certain P. They submitted copies of two more conviction judgments under Article 138 of the Criminal Code: the first conviction concerned the selling of espionage equipment, namely pens and watches with in-build cameras, while the second conviction concerned the covert hacking of a communication provider’s database in order to obtain the users’ call detail records.
225. Lastly, the Government argued that remedies were also available in Russian law to challenge the alleged insufficiency of safeguards against abuse in the sphere of interception of communications (see paragraph 156 above).
226. The Government submitted that the applicant had not used any of the remedies available to him under Russian law and described above. In particular, he had chosen to bring judicial proceedings against mobile network operators, the Ministry of Communications being joined only as a third party to the proceedings.
(b) The Court’s assessment
(i) General principles
227. The Court reiterates that any interference can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see Kennedy, cited above, § 130).
228. The Court notes from its well established case-law that the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must thus meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V; S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 95, ECHR 2008; and Kennedy, cited above, § 151).
229. The Court has held on several occasions that the reference to “foreseeability” in the context of interception of communications cannot be the same as in many other fields. Foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident. It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated. The domestic law must be sufficiently clear to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, cited above, § 67; Leander v. Sweden, 26 March 1987, § 51, Series A no. 116; Huvig v. France, 24 April 1990, § 29, Series A no. 176-B; Valenzuela Contreras v. Spain, 30 July 1998, § 46, Reports of Judgments and Decisions 1998-V; Rotaru, cited above, § 55; Weber and Saravia, cited above, § 93; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 75).
230. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, § 68; Leander, cited above, § 51; Huvig, cited above, § 29; and Weber and Saravia, cited above, § 94).
231. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in law in order to avoid abuses of power: the nature of offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; the procedure to be followed for examining, using and storing the data obtained; the precautions to be taken when communicating the data to other parties; and the circumstances in which recordings may or must be erased or destroyed (see Huvig, cited above, § 34; Amann v. Switzerland [GC], no. 27798/95, §§ 56-58, ECHR 2000-II; Valenzuela Contreras, cited above, § 46; Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003; Weber and Saravia, cited above, § 95; and Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 76).
232. As to the question whether an interference was “necessary in a democratic society” in pursuit of a legitimate aim, the Court has acknowledged that, when balancing the interest of the respondent State in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, this margin is subject to European supervision embracing both legislation and decisions applying it. In view of the risk that a system of secret surveillance set up to protect national security may undermine or even destroy democracy under the cloak of defending it, the Court must be satisfied that there are adequate and effective guarantees against abuse. The 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 authorise, carry out and supervise them, and the kind of remedy provided by the national law. The Court has to determine whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the “interference” to what is “necessary in a democratic society” (see Klass and Others, cited above, §§ 49, 50 and 59; Weber and Saravia, cited above, § 106; Kvasnica v. Slovakia, no. 72094/01, § 80, 9 June 2009; and Kennedy, cited above, §§ 153 and 154).
233. 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. In addition, the values of a democratic society must be followed as faithfully as possible in the supervisory procedures if the bounds of necessity, within the meaning of Article 8 § 2, are not to be exceeded. In a field where abuse is potentially so easy in individual cases and could have such harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial control offering the best guarantees of independence, impartiality and a proper procedure (see Klass and Others, cited above, §§ 55 and 56).
234. As regards the third stage, after the surveillance has been terminated, the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers. There is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively (see Klass and Others, cited above, § 57, and Weber and Saravia, cited above, § 135) or, in the alternative, unless any person who suspects that his or her communications are being or have been intercepted can apply to courts, so that the courts’ jurisdiction does not depend on notification to the interception subject that there has been an interception of his communications (see Kennedy, cited above, § 167).
(ii) Application of the general principles to the present case
235. The Court notes that it has found there to be an interference under Article 8 § 1 in respect of the applicant’s general complaint about Russian legislation governing covert interception of mobile telephone communications. Accordingly, in its examination of the justification for the interference under Article 8 § 2, the Court is required to examine whether the contested legislation itself is in conformity with the Convention.
236. In cases where the legislation permitting secret surveillance is contested before the Court, the lawfulness of the interference is closely related to the question whether the “necessity” test has been complied with and it is therefore appropriate for the Court to address jointly the “in accordance with the law” and “necessity” requirements (see Kennedy, cited above, § 155; see also Kvasnica, cited above, § 84). The “quality of law” in this sense implies that the domestic law must not only be accessible and foreseeable in its application, it must also ensure that secret surveillance measures are applied only when “necessary in a democratic society”, in particular by providing for adequate and effective safeguards and guarantees against abuse.
237. It has not been disputed by the parties that interceptions of mobile telephone communications have a basis in the domestic law. They are governed, in particular, by the CCrP and the OSAA, as well as by the Communications Act and the Orders issued by the Ministry of Communications. Furthermore, the 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 (see paragraph 26 above). It therefore remains to be ascertained whether the domestic law is accessible and contains adequate and effective safeguards and guarantees to meet the requirements of “foreseeability” and “necessity in a democratic society”.
238. The Court will therefore assess in turn the accessibility of the domestic law, the scope and duration of the secret surveillance measures, the procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data, the authorisation procedures, the arrangements for supervising the implementation of secret surveillance measures, any notification mechanisms and the remedies provided for by national law.
(a) Accessibility of domestic law
239. It is common ground between the parties that almost all legal provisions governing secret surveillance – including the CCrP, the OSAA, the Communications Act and the majority of the Orders issued by the Ministry of Communications – have been officially published and are accessible to the public. The parties disputed, however, whether the addendums to Order no. 70 by the Ministry of Communications met the requirements of accessibility.
240. The Court observes that the addendums to Order no. 70 have never been published in a generally accessible official publication, as they were considered to be technical in nature (see paragraph 128 above).
241. The Court accepts that the addendums to Order no. 70 mainly describe the technical requirements for the interception equipment to be installed by communications service providers. At the same time, by requiring that the equipment at issue must ensure that the law-enforcement authorities have direct access to all mobile telephone communications of all users and must not log or record information about interceptions initiated by the law-enforcement authorities (see paragraphs 115 to 122 above), the addendums to Order No. 70 are capable of affecting the users’ right to respect for their private life and correspondence. The Court therefore considers that they must be accessible to the public.
242. The publication of the Order in the Ministry of Communications’ official magazine SvyazInform, distributed through subscription, made it available only to communications specialists rather than to the public at large. At the same time, the Court notes that the text of the Order, with the addendums, can be accessed through a privately-maintained internet legal database, which reproduced it from the publication in SvyazInform (see paragraph 115 above). The Court finds the lack of a generally accessible official publication of Order no. 70 regrettable. However, taking into account the fact that it has been published in an official ministerial magazine, combined with the fact that it can be accessed by the general public through an internet legal database, the Court does not find it necessary to pursue further the issue of the accessibility of domestic law. It will concentrate instead on the requirements of “foreseeability” and “necessity”.
(ß) Scope of application of secret surveillance measures
243. The Court reiterates that the national law must define the scope of application of secret surveillance measures by giving citizens an adequate indication as to the circumstances in which public authorities are empowered to resort to such measures – in particular by clearly setting out the nature of the offences which may give rise to an interception order and a definition of the categories of people liable to have their telephones tapped (see paragraph 231 above).
244. As regards the nature of the offences, the Court emphasises that the condition of foreseeability does not require States to set out exhaustively, by name, the specific offences which may give rise to interception. However, sufficient detail should be provided on the nature of the offences in question (see Kennedy, cited above, § 159). Both the OSAA and the CCrP provide that telephone and other communications may be intercepted in connection with an offence of medium severity, a serious offence or an especially serious criminal offence – that is, an offence for which the Criminal Code prescribes a maximum penalty of more than three years’ imprisonment – which has been already committed, is ongoing or being plotted (see paragraphs 31 to 33 above). The Court considers that the nature of the offences which may give rise to an interception order is sufficiently clear. At the same time it notes with concern that Russian law allows secret interception of communications in respect of a very wide range of criminal offences, including for example, as pointed out by the applicant, pickpocketing (see paragraph 182 above; see also, for similar reasoning, Iordachi and Others, cited above, §§ 43 and 44).
245. The Court further notes that interceptions may be ordered not only in respect of a suspect or an accused, but also in respect of a person who may have information about an offence or may have other information relevant to the criminal case (see paragraph 32 above). The Court has earlier found that interception measures in respect of a person who was not suspected of any offence but could possess information about such an offence might be justified under Article 8 of the Convention (see Greuter, cited above). At the same time, the Court notes the absence of any clarifications in Russian legislation or established case-law as to how the terms “a person who may have information about a criminal offence” and “a person who may have information relevant to the criminal case” are to be applied in practice (see, for similar reasoning, Iordachi and Others, cited above, § 44).
246. The Court also observes that in addition to interceptions for the purposes of preventing or detecting criminal offences, the OSAA also provides that telephone or other communications may be intercepted following the receipt of information about events or activities endangering Russia’s national, military, economic or ecological security (see paragraph 31 above). Which events or activities may be considered as endangering such types of security interests is nowhere defined in Russian law.
247. The Court has previously found that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail all conduct that may prompt a decision to subject an individual to secret surveillance on “national security” grounds. By the nature of things, threats to national security may vary in character and may be unanticipated or difficult to define in advance (see Kennedy, cited above, § 159). At the same time, the Court has also emphasised that in matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see Liu v. Russia, no. 42086/05, § 56, 6 December 2007, with further references).
248. It is significant that the OSAA does not give any indication of the circumstances under which an individual’s communications may be intercepted on account of events or activities endangering Russia’s national, military, economic or ecological security. It leaves the authorities an almost unlimited degree of discretion in determining which events or acts constitute such a threat and whether that threat is serious enough to justify secret surveillance, thereby creating possibilities for abuse (see, for similar reasoning, Iordachi and Others, cited above, § 46).
249. That being said, the Court does not lose sight of the fact that prior judicial authorisation for interceptions is required in Russia. Such judicial authorisation may serve to limit the law-enforcement authorities’ discretion in interpreting the broad terms of “a person who may have information about a criminal offence”, “a person who may have information relevant to the criminal case”, and “events or activities endangering Russia’s national, military, economic or ecological security” by following an established judicial interpretation of the terms or an established practice to verify whether sufficient reasons for intercepting a specific individual’s communications exist in each case. The Court accepts that the requirement of prior judicial authorisation constitutes an important safeguard against arbitrariness. The effectiveness of that safeguard will be examined below.
(?) The duration of secret surveillance measures
250. The Court has held that it is not unreasonable to leave the overall duration of interception to the discretion of the relevant domestic authorities which have competence to issue and renew interception warrants, provided that adequate safeguards exist, such as a clear indication in the domestic law of the period after which an interception warrant will expire, the conditions under which a warrant can be renewed and the circumstances in which it must be cancelled (see Kennedy, cited above, § 161; see also Klass and Others, cited above, 52, and Weber and Saravia, cited above, § 98).
251. As regards the first safeguard, both the CCrP and the OSAA provide that interceptions may be authorised by a judge for a period not exceeding six months (see paragraphs 38 and 47 above). There is therefore a clear indication in the domestic law of the period after which an interception authorisation will expire. Secondly, the conditions under which an authorisation can be renewed are also clearly set out in law. In particular, under both the CCrP and the OSAA a judge may extend interception for a maximum of six months at a time, after a fresh examination of all the relevant materials (id.). However, as regards the third safeguard concerning the circumstances in which the interception must be discontinued, the Court notes that the requirement to discontinue interception when no longer necessary is mentioned in the CCrP only. Regrettably, the OSAA does not contain such a requirement (id.). In practice, this means that interceptions in the framework of criminal proceedings are attended by more safeguards than interceptions conducted outside such a framework, in particular in connection with “events or activities endangering national, military, economic or ecological security”.
252. The Court concludes from the above that while Russian law contains clear rules on the duration and renewal of interceptions providing adequate safeguards against abuse, the OSAA provisions on discontinuation of the surveillance measures do not provide sufficient guarantees against arbitrary interference.
(d) Procedures to be followed for storing, accessing, examining, using, communicating and destroying the intercepted data
253. Russian law stipulates that data collected as a result of secret surveillance measures constitute a State secret and are to be sealed and stored under conditions excluding any risk of unauthorised access. They may be disclosed to those State officials who genuinely need the data for the performance of their duties and have the appropriate level of security clearance. Steps must be taken to ensure that only the amount of information needed by the recipient to perform his or her duties is disclosed, and no more. The official responsible for ensuring that the data are securely stored and inaccessible to those without the necessary security clearance is clearly defined (see paragraphs 51 to 57 above). Domestic law also sets out the conditions and procedures for communicating intercepted data containing information about a criminal offence to the prosecuting authorities. It describes, in particular, the requirements for their secure storage and the conditions for their use as evidence in criminal proceedings (see paragraphs 58 to 64 above). The Court is satisfied that Russian law contains clear rules governing the storage, use and communication of intercepted data, making it possible to minimise the risk of unauthorised access or disclosure (see, for similar reasoning, Kennedy, cited above, §§ 62 and 63).
254. As far as the destruction of intercept material is concerned, domestic law provides that intercept material must be destroyed after six months of storage, if the person concerned has not been charged with a criminal offence. If the person has been charged with a criminal offence, the trial judge must make a decision, at the end of the criminal proceedings, on the further storage and destruction of the intercept material used in evidence (see paragraphs 65 and 66 above).
255. As regards the cases where the person concerned has not been charged with a criminal offence, the Court is not convinced by the applicant’s argument that Russian law permits storage of the intercept material beyond the statutory time-limit (see paragraph 188 above). It appears that the provision referred to by the applicant does not apply to the specific case of storage of data collected as a result of interception of communications. The Court considers the six-month storage time-limit set out in Russian law for such data reasonable. At the same time, it deplores the lack of a requirement to destroy immediately any data that are not relevant to the purpose for which they has been obtained (compare Klass and Others, cited above, § 52, and Kennedy, cited above, § 162). The automatic storage for six months of clearly irrelevant data cannot be considered justified under Article 8.
256. Furthermore, as regards the cases where the person has been charged with a criminal offence, the Court notes with concern that Russian law allows unlimited discretion to the trial judge to store or to destroy the data used in evidence after the end of the trial (see paragraph 66 above). Russian law does not give citizens any indication as to the circumstances in which the intercept material may be stored after the end of the trial. The Court therefore considers that the domestic law is not sufficiently clear on this point.
(e) Authorisation of interceptions
Authorisation procedures
257. The Court will take into account a number of factors in assessing whether the authorisation procedures are capable of ensuring that secret surveillance is not ordered haphazardly, irregularly or without due and proper consideration. These factors include, in particular, the authority competent to authorise the surveillance, its scope of review and the content of the interception authorisation.
258. As regards the authority competent to authorise the surveillance, authorising of telephone tapping by a non-judicial authority may be compatible with the Convention (see, for example, Klass and Others, cited above, § 51; Weber and Saravia, cited above, § 115; and Kennedy, cited above, § 31), provided that that authority is sufficiently independent from the executive (see Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 71, 26 April 2007).
259. Russian law contains an important safeguard against arbitrary or indiscriminate secret surveillance. It dictates that any interception of telephone or other communications must be authorised by a court (see paragraphs 34 and 44 above). The law-enforcement agency seeking authorisation for interception must submit a reasoned request to that effect to a judge, who may require the agency to produce supporting materials (see paragraphs 37 and 46 above). The judge must give reasons for the decision to authorise interceptions (see paragraphs 38 and 44 above).
260. Turning now to the authorisation authority’s scope of review, the Court reiterates that it must be 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, such as, for example, acts endangering national security. It must also ascertain whether the requested interception meets the requirement of “necessity in a democratic society”, as provided by Article 8 § 2 of the Convention, including whether it is proportionate to the legitimate aims pursued, by verifying, for example whether it is possible to achieve the aims by less restrictive means (see Klass and Others, cited above, § 51; Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 79 and 80; Iordachi and Others, cited above, § 51; and Kennedy, cited above, §§ 31 and 32).
261. The Court notes that in Russia judicial scrutiny is limited in scope. Thus, materials containing information about undercover agents or police informers or about the organisation and tactics of operational-search measures may not be submitted to the judge and are therefore excluded from the court’s scope of review (see paragraph 37 above). The Court considers that the failure to disclose the relevant information to the courts deprives them of the power to assess whether there is a sufficient factual basis to suspect the person in respect of whom operational-search measures are requested of a criminal offence or of activities endangering national, military, economic or ecological security (see, mutatis mutandis, Liu, cited above, §§ 59-63). The Court has earlier found that there are techniques that can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice (see, mutatis mutandis, Chahal v. the United Kingdom, 15 November 1996, § 131, Reports of Judgments and Decisions 1996-V).
262. Furthermore, the Court observes that in Russia the judges are not instructed, either by the CCrP or by the OSAA, to verify the existence of a “reasonable suspicion” against the person concerned or to apply the “necessity” and “proportionality” test”. At the same time, the Court notes that the Constitutional Court has explained in its decisions that the burden of proof is on the requesting agency to show that interception is necessary and that the judge examining an interception request should verify the grounds for that measure and grant authorisation only if he or she is persuaded that interception is lawful, necessary and justified. The Constitutional Court has also held that the judicial decision authorising interception should contain reasons and refer to specific grounds for suspecting that a criminal offence has been committed, or is ongoing, or is being plotted or that activities endangering national, military, economic or ecological security are being carried out, as well as that the person in respect of whom interception is requested is involved in these criminal or otherwise dangerous activities (see paragraphs 40 to 42 above). The Constitutional Court has therefore recommended, in substance, that when examining interception authorisation requests Russian courts should verify the existence of a reasonable suspicion against the person concerned and should authorise interception only if it meets the requirements of necessity and proportionality.
263. However, the Court observes that the domestic law does not explicitly require the courts of general jurisdiction to follow the Constitutional Court’s opinion as to how a legislative provision should be interpreted if such opinion has been expressed in a decision rather than a judgment (see paragraph 106 above). Indeed, the materials submitted by the applicant show that the domestic courts do not always follow the above-mentioned recommendations of the Constitutional Court, all of which were contained in decisions rather than in judgments. Thus, it transpires from the analytical notes issued by District Courts that interception requests are often not accompanied by any supporting materials, that the judges of these District Courts never request the interception agency to submit such materials and that a mere reference to the existence of information about a criminal offence or activities endangering national, military, economic or ecological security is considered to be sufficient for the authorisation to be granted. An interception request is rejected only if it is not signed by a competent person, contains no reference to the offence in connection with which interception is to be ordered, or concerns a criminal offence in respect of which interception is not permitted under domestic law (see paragraph 193 above). Thus, the analytical notes issued by District Courts, taken together with the statistical information for the period from 2009 to 2013 provided by the applicant (see paragraph 194 above), indicate that in their everyday practice Russian courts do not verify whether there is a “reasonable suspicion” against the person concerned and do not apply the “necessity” and “proportionality” test.
264. Lastly, as regards the content of the interception authorisation, it must clearly identify a specific person to be placed under surveillance or a single set of premises as the premises in respect of which the authorisation is ordered. Such identification may be made by names, addresses, telephone numbers or other relevant information (see Klass and Others, cited above, § 51; Liberty and Others, cited above, §§ 64 and 65; Dumitru Popescu (no. 2), cited above, § 78; Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 80; and Kennedy, cited above, § 160).
265. The Court observes that the CCrP requires that a request for interception authorisation must clearly mention a specific person whose communications are to be intercepted, as well as the duration of the interception measure (see paragraph 46 above). By contrast, the OSAA does not contain any requirements either with regard to the content of the request for interception or to the content of the interception authorisation. As a result, courts sometimes grant interception authorisations which do not mention a specific person or telephone number to be tapped, but authorise interception of all telephone communications in the area where a criminal offence has been committed. Some authorisations do not mention the duration for which interception is authorised (see paragraph 193 above). The Court considers that such authorisations, which are not clearly prohibited by the OSAA, grant a very wide discretion to the law-enforcement authorities as to which communications to intercept, and for how long.
266. The Court further notes that in cases of urgency it is possible to intercept communications without prior judicial authorisation for up to forty-eight hours. A judge must be informed of any such case within twenty-four hours from the commencement of the interception. If no judicial authorisation has been issued within forty-eight hours, the interception must be stopped immediately (see paragraph 35 above). The Court has already examined the “urgency” procedure provided for in Bulgarian law and found that it was compatible with the Convention (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 16 and 82). However, in contrast to the Bulgarian provision, the Russian “urgent procedure” does not provide for sufficient safeguards to ensure that it is used sparingly and only in duly justified cases. Thus, although in the criminal sphere the OSAA limits recourse to the urgency procedure to cases where there exists an immediate danger that a serious or especially serious offence may be committed, it does not contain any such limitations in respect of secret surveillance in connection with events or activities endangering national, military, economic or ecological security. The domestic law does not limit the use of the urgency procedure to cases involving an immediate serious danger to national, military, economic or ecological security. It leaves the authorities an unlimited degree of discretion in determining in which situations it is justified to use the non-judicial urgent procedure, thereby creating possibilities for abusive recourse to it (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Furthermore, although Russian law requires that a judge be immediately informed of each instance of urgent interception, his or her power is limited to authorising the extension of the interception measure beyond forty-eight hours. He or she has no power to assess whether the use of the urgent procedure was justified or to decide whether the material obtained during the previous forty-eight hours is to be kept or destroyed (see, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 16). Russian law does therefore not provide for an effective judicial review of the urgency procedure.
267. In view of the above considerations the Court considers that the authorisation procedures provided for by Russian law are not capable of ensuring that secret surveillance measures are not ordered haphazardly, irregularly or without due and proper consideration.
The authorities’ access to communications
268. The Court takes note of the applicant’s argument that the security services and the police have the technical means to intercept mobile telephone communications without obtaining judicial authorisation, as they have direct access to all communications and as their ability to intercept the communications of a particular individual or individuals is not conditional on providing an interception authorisation to the communications service provider.
269. The Court considers that the requirement to show an interception authorisation to the communications service provider before obtaining access to a person’s communications is one of the important safeguards against abuse by the law-enforcement authorities, ensuring that proper authorisation is obtained in all cases of interception. In Russia the law-enforcement authorities are not required under domestic law to show the judicial authorisation to the communications service provider before obtaining access to a person’s communications (see, by contrast, the EU Council Resolution cited in paragraph 145 above), except in connection with the monitoring of communications-related data under the CCrP (see paragraph 48 above). Indeed, pursuant to Orders issued by the Ministry of Communications, in particular the addendums to Order No. 70, communications service providers must install equipment giving the law-enforcement authorities direct access to all mobile telephone communications of all users (see paragraphs 115 to 122 above). The communications service providers also have an obligation under Order no. 538 to create databases storing information about all subscribers, and the services provided to them, for three years; the secret services have direct remote access to those databases (see paragraphs 132 and 133 above). The law-enforcement authorities thus have direct access to all mobile telephone communications and related communications data.
270. The Court considers that the manner in which the system of secret surveillance operates in Russia gives the security services and the police technical means to circumvent the authorisation procedure and to intercept any communications without obtaining prior judicial authorisation. Although the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system (see Klass and Others, cited above, § 59), the Court considers that a system, such as the Russian one, which enables the secret services and the police to intercept directly the communications of each and every citizen without requiring them to show an interception authorisation to the communications service provider, or to anyone else, is particularly prone to abuse. The need for safeguards against arbitrariness and abuse appears therefore to be particularly great.
271. The Court will therefore examine with particular attention whether the supervision arrangements provided by Russian law are capable of ensuring that all interceptions are performed lawfully on the basis of proper judicial authorisation.
(?) Supervision of the implementation of secret surveillance measures
272. The Court notes at the outset that Order no. 70 requires that the equipment installed by the communications service providers does not record or log information about interceptions (see paragraph 120 above). The Court has found that an obligation on the intercepting agencies to keep records of interceptions is particularly important to ensure that the supervisory body had effective access to details of surveillance activities undertaken (see Kennedy, cited above, § 165). The prohibition on logging or recording interceptions set out in Russian law makes it impossible for the supervising authority to discover interceptions carried out without proper judicial authorisation. Combined with the law-enforcement authorities’ technical ability, pursuant to the same Order no. 70, to intercept directly all communications, this provision renders any supervision arrangements incapable of detecting unlawful interceptions and therefore ineffective.
273. As regards supervision of interceptions carried out on the basis of proper judicial authorisations, the Court will examine whether the supervision arrangements existing in Russia are capable of ensuring that the statutory requirements relating to the implementation of the surveillance measures, the storage, access to, use, processing, communication and destruction of intercept material are routinely respected.
274. A court which has granted authorisation for interception has no competence to supervise its implementation. It is not informed of the results of the interceptions and has no power to review whether the requirements of the decision granting authorisation were complied with. Nor do Russian courts in general have competence to carry out the overall supervision of interceptions. Judicial supervision is limited to the initial authorisation stage. Subsequent supervision is entrusted to the President, Parliament, the Government, the Prosecutor General and competent lower-level prosecutors.
275. The Court has earlier found that, although it is in principle desirable to entrust supervisory control to a judge, supervision by non-judicial bodies may be considered compatible with the Convention, provided that the supervisory body is independent of the authorities carrying out the surveillance, and is vested with sufficient powers and competence to exercise an effective and continuous control (see Klass and Others, cited above, § 56).
276. As far as the President, Parliament and the Government are concerned, Russian law does not set out the manner in which they may supervise interceptions. There are no publicly available regulations or instructions describing the scope of their review, the conditions under which it may be carried out, the procedures for reviewing the surveillance measures or for remedying the breaches detected (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88).
277. As regards supervision of interceptions by prosecutors, the Court observes that the national law sets out the scope of, and the procedures for, prosecutors’ supervision of operational-search activities (see paragraphs 69 to 80 above). It stipulates that prosecutors may carry out routine and ad hoc inspections of agencies performing operational-search activities and are entitled to study the relevant documents, including confidential ones. They may take measures to stop or remedy the detected breaches of law and to bring those responsible to liability. They must submit semi-annual reports detailing the results of the inspections to the Prosecutor General’s Office. The Court accepts that a legal framework exists which provides, at least in theory, for some supervision by prosecutors of secret surveillance measures. It must be next examined whether the prosecutors are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise effective and continuous control.
278. As to the independence requirement, in previous cases the Court has taken into account the manner of appointment and the legal status of the members of the supervisory body. In particular, it found sufficiently independent the bodies composed of members of parliament of both the majority and the opposition, or of persons qualified to hold judicial office, appointed either by parliament or by the Prime Minister (see, for example, Klass and Others, cited above, §§ 21 and 56; Weber and Saravia, cited above, §§ 24, 25 and 117; Leander, cited above, § 65; (see L. v. Norway, no. 13564/88, Commission decision of 8 June 1990); and Kennedy, cited above, §§ 57 and 166). In contrast, a Minister of Internal Affairs – who not only was a political appointee and a member of the executive, but was directly involved in the commissioning of special means of surveillance – was found to be insufficiently independent (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 85 and 87). Similarly, a Prosecutor General and competent lower-level prosecutors were also found to be insufficiently independent (see Iordachi and Others, cited above, § 47).
279. In contrast to the supervisory bodies cited above, in Russia prosecutors are appointed and dismissed by the Prosecutor General after consultation with the regional executive authorities (see paragraph 70 above). This fact may raise doubts as to their independence from the executive.
280. Furthermore, it is essential that any role prosecutors have in the general protection of human rights does not give rise to any conflict of interest (see Menchinskaya v. Russia, no. 42454/02, §§ 19 and 38, 15 January 2009). The Court observes that prosecutor’s offices do not specialise in supervision of interceptions (see paragraph 71 above). Such supervision is only one part of their broad and diversified functions, which include prosecution and supervision of criminal investigations. In the framework of their prosecuting functions, prosecutors give their approval to all interception requests lodged by investigators in the framework of criminal proceedings (see paragraph 44 above). This blending of functions within one prosecutor’s office, with the same office giving approval to requests for interceptions and then supervising their implementation, may also raise doubts as to the prosecutors’ independence (see, by way of contrast, Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 215, 10 January 2012, concerning supervision by prosecutors of detention facilities, where it was found that prosecutors complied with the requirement of independence vis-à-vis the penitentiary system’s bodies).
281. Turning now to the prosecutors’ powers and competences, the Court notes that it is essential that the supervisory body has access to all relevant documents, including closed materials and that all those involved in interception activities have a duty to disclose to it any material it required (see Kennedy, cited above, § 166). Russian law stipulates that prosecutors are entitled to study relevant documents, including confidential ones. It is however important to note that information about the security services’ undercover agents, and about the tactics, methods and means used by them, is outside the scope of prosecutors’ supervision (see paragraph 74 above). The scope of their supervision is therefore limited. Moreover, interceptions performed by the FSB in the sphere of counterintelligence may be inspected only following an individual complaint (see paragraph 76 above). As individuals are not notified of interceptions (see paragraph 81 above and paragraph 289 below), it is unlikely that such a complaint will ever be lodged. As a result, surveillance measures related to counter-intelligence de facto escape supervision by prosecutors.
282. The supervisory body’s powers with respect to any breaches detected are also an important element for the assessment of the effectiveness of its supervision (see, for example, Klass and Others, cited above, § 53, where the intercepting agency was required to terminate the interception immediately if the G10 Commission found it illegal or unnecessary; and Kennedy, cited above, § 168, where any intercept material was to be destroyed as soon as the Interception of Communications Commissioner discovered that the interception was unlawful). The Court is satisfied that prosecutors have certain powers with respect to the breaches detected by them. Thus, they may take measures to stop or remedy the detected breaches of law and to bring those responsible to liability (see paragraph 79 above). However, there is no specific provision requiring destruction of the unlawfully obtained intercept material (see Kennedy, cited above, § 168).
283. The Court must also examine whether the supervisory body’s activities are open to public scrutiny (see, for example, L. v. Norway, cited above, where the supervision was performed by the Control Committee, which reported annually to the Government and whose reports were published and discussed by Parliament; Kennedy, cited above, § 166, where the supervision of interceptions was performed by the Interception of Communications Commissioner, who reported annually to the Prime Minister, his report being a public document laid before Parliament; and, by contrast, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 88, where the Court found fault with the system where neither the Minister of Internal Affairs nor any other official was required to report regularly to an independent body or to the general public on the overall operation of the system or on the measures applied in individual cases). In Russia, prosecutors must submit semi-annual reports detailing the results of the inspections to the Prosecutor General’s Office. However, these reports concern all types of operational-search measures, amalgamated together, without interceptions being treated separately from other measures. Moreover, the reports contain only statistical information about the number of inspections of operational-search measures carried out and the number of breaches detected, without specifying the nature of the breaches or the measures taken to remedy them. It is also significant that the reports are confidential documents. They are not published or otherwise accessible to the public (see paragraph 80 above). It follows that in Russia supervision by prosecutors is conducted in a manner which is not open to public scrutiny and knowledge.
284. Lastly, the Court notes that it is for the Government to illustrate the practical effectiveness of the supervision arrangements with appropriate examples (see, mutatis mutandis, Ananyev and Others, cited above, §§ 109 and 110). However, the Russian Government did not submit any inspection reports or decisions by prosecutors ordering the taking of measures to stop or remedy a detected breach of law. It follows that the Government did not demonstrate that prosecutors’ supervision of secret surveillance measures is effective in practice. The Court also takes note in this connection of the documents submitted by the applicant illustrating prosecutors’ inability to obtain access to classified materials relating to interceptions (see paragraph 14 above). That example also raises doubts as to the effectiveness of supervision by prosecutors in practice.
285. In view of the defects identified above, and taking into account the particular importance of supervision in a system where law-enforcement authorities have direct access to all communications, the Court considers that the prosecutors’ supervision of interceptions as it is currently organised is not capable of providing adequate and effective guarantees against abuse.
(?) Notification of interception of communications and available remedies
286. The Court will now turn to the issue of notification of interception of communications which is inextricably linked to the effectiveness of remedies before the courts (see case-law cited in paragraph 234 above).
287. It may not be feasible in practice to require subsequent notification in all cases. The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. Therefore, the fact that persons concerned by secret surveillance measures are not subsequently notified once surveillance has ceased cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society”, as it is the very absence of knowledge of surveillance which ensures the efficacy of the interference. As soon as notification can be carried out without jeopardising the purpose of the restriction after the termination of the surveillance measure, information should, however, be provided to the persons concerned (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 135). The Court also takes note of the Recommendation of the Committee of Ministers regulating the use of personal data in the police sector, which provides that where data concerning an individual have been collected and stored without his or her knowledge, and unless the data are deleted, he or she should be informed, where practicable, that information is held about him or her as soon as the object of the police activities is no longer likely to be prejudiced (§ 2.2, see paragraph 143 above).
288. In the cases of Klass and Others and Weber and Saravia the Court examined German legislation which provided for notification of surveillance as soon as that could be done after its termination without jeopardising its purpose. The Court took into account that it was an independent authority, the G10 Commission, which had the power to decide whether an individual being monitored was to be notified of a surveillance measure. The Court found that the provision in question ensured an effective notification mechanism which contributed to keeping the interference with the secrecy of telecommunications within the limits of what was necessary to achieve the legitimate aims pursued (see Klass and Others, cited above, § 58, and Weber and Saravia, cited above, § 136). In the cases of Association for European Integration and Human Rights and Ekimdzhiev and Dumitru Popescu (no. 2), the Court found that the absence of a requirement to notify the subject of interception at any point was incompatible with the Convention, in that it deprived the interception subject of an opportunity to seek redress for unlawful interferences with his or her Article 8 rights and rendered the remedies available under the national law theoretical and illusory rather than practical and effective. The national law thus eschewed an important safeguard against the improper use of special means of surveillance (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, §§ 90 and 91, and Dumitru Popescu (no. 2), cited above, § 77). By contrast, in the case of Kennedy the absence of a requirement to notify the subject of interception at any point in time was compatible with the Convention, because in the United Kingdom any person who suspected that his communications were being or had been intercepted could apply to the Investigatory Powers Tribunal, whose jurisdiction did not depend on notification to the interception subject that there had been an interception of his or her communications (see Kennedy, cited above, § 167).
289. Turning now to the circumstances of the present case, the Court observes that in Russia persons whose communications have been intercepted are not notified of this fact at any point or under any circumstances. It follows that, unless criminal proceedings have been opened against the interception subject and the intercepted data have been used in evidence, or unless there has been a leak, the person concerned is unlikely ever to find out if his or her communications have been intercepted.
290. The Court takes note of the fact that a person who has somehow learned that his or her communications have been intercepted may request information about the corresponding data (see paragraph 81 above). It is worth noting in this connection that in order to be entitled to lodge such a request the person must be in possession of the facts of the operational-search measures to which he or she was subjected. It follows that the access to information is conditional on the person’s ability to prove that his or her communications were intercepted. Furthermore, the interception subject is not entitled to obtain access to documents relating to interception of his or her communications; he or she is at best entitled to receive “information” about the collected data. Such information is provided only in very limited circumstances, namely if the person’s guilt has not been proved in accordance with the procedure prescribed by law, that is, he or she has not been charged or the charges have been dropped on the ground that the alleged offence was not committed or that one or more elements of a criminal offence were missing. It is also significant that only information that does not contain State secrets may be disclosed to the interception subject and that under Russian law information about the facilities used in operational-search activities, the methods employed, the officials involved and the data collected constitutes a State secret (see paragraph 52 above). In view of the above features of Russian law, the possibility to obtain information about interceptions appears to be ineffective.
291. The Court will bear the above factors – the absence of notification and the lack of an effective possibility to request and obtain information about interceptions from the authorities – in mind when assessing the effectiveness of remedies available under Russian law.
292. Russian law provides that a person claiming that his or her rights have been or are being violated by a State official performing operational-search activities may complain to the official’s superior, a prosecutor or a court (see paragraph 83 above). The Court reiterates that a hierarchical appeal to a direct supervisor of the authority whose actions are being challenged does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority (see, for similar reasoning, Khan v. the United Kingdom, no. 35394/97, §§ 45-47, ECHR 2000-V; Dumitru Popescu (no. 2), cited above, § 72; and Avanesyan, cited above, § 32). A prosecutor also lacks independence and has a limited scope of review, as demonstrated above (see paragraphs 277 to 285 above). It remains to be ascertained whether a complaint to a court may be regarded as an effective remedy.
293. There are four judicial procedures which, according to the Government, may be used by a person wishing to complain about interception of his communications: an appeal, a cassation appeal or a supervisory-review complaint against the judicial decision authorising interception of communications; a judicial review complaint under Article 125 of the CCrP; a judicial review complaint under the Judicial Review Act and Chapter 25 of the Code of Civil Procedure; and a civil tort claim under Article 1069 of the Civil Code. The Court will examine them in turn.
294. The first of the procedures invoked by the Government is an appeal, cassation appeal or supervisory-review complaint against the judicial decision authorising interception of communications. However, the Constitutional Court stated clearly that the interception subject had no right to appeal against the judicial decision authorising interception of his communications (see paragraph 40 above; see also Avanesyan, cited above, § 30). Domestic law is silent on the possibility of lodging a cassation appeal. Given that the Government did not submit any examples of domestic practice on examination of cassation appeals, the Court has strong doubts as to the existence of a right to lodge a cassation appeal against a judicial decision authorising interception of communications. At the same time, the interception subject is clearly entitled to lodge a supervisory review complaint (see paragraph 43 above). However, in order to lodge a supervisory review complaint against the judicial decision authorising interception of communications, the person concerned must be aware that such a decision exists. Although the Constitutional Court has held that it is not necessary to attach a copy of the contested judicial decision to the supervisory review complaint (ibid.), it is difficult to imagine how a person can lodge such a complaint without having at least the minimum information about the decision he or she is challenging, such as its date and the court which has issued it. In the absence of notification of surveillance measures under Russian law, an individual would hardly ever be able to obtain that information unless it were to be disclosed in the context of criminal proceedings against him or her or there was some indiscretion which resulted in disclosure.
295. Further, a complaint under Article 125 of the CCrP may be lodged only by a participant to criminal proceedings while a pre-trial investigation is pending (see paragraphs 88 and 89 above). This remedy is therefore available only to persons who have learned about the interception of their communications in the framework of criminal proceedings against them. It cannot be used by a person against whom no criminal proceedings have been brought following the interception of his or her communications and who does not know whether his or her communications were intercepted. It is also worth noting that the Government did not submit any judicial decisions examining a complaint under Article 125 of the CCrP about the interception of communications. They therefore failed to illustrate the practical effectiveness of the remedy invoked by them with examples from the case-law of the domestic courts (see, for similar reasoning, Rotaru, cited above, § 70, and Ananyev and Others, cited above, §§ 109 and 110).
296. As regards the judicial review complaint under the Judicial Review Act, Chapter 25 of the Code of Civil Procedure and the new Code of Administrative Procedure and a civil tort claim under Article 1069 of the Civil Code, the burden of proof is on the claimant to show that the interception has taken place and that his or her rights were thereby breached (see paragraphs 85, 95, 96 and 105 above). In the absence of notification or some form of access to official documents relating to the interceptions such a burden of proof is virtually impossible to satisfy. Indeed, the applicant’s judicial complaint was rejected by the domestic courts on the ground that he had failed to prove that his telephone communications had been intercepted (see paragraphs 11 and 13 above). The Court notes that the Government submitted several judicial decisions taken under Chapter 25 of the Code of Civil Procedure or Article 1069 of the Civil Code (see paragraphs 220 to 223 above). However, all of those decisions, with one exception, concern searches or seizures of documents or objects, that is, operational-search measures carried out with the knowledge of the person concerned. Only one judicial decision concerns interception of communications. In that case the intercept subject was able to discharge the burden of proof because she had learned about the interception of her communications in the course of criminal proceedings against her.
297. Further, the Court takes note of the Government’s argument that Russian law provides for criminal remedies for abuse of power, unauthorised collection or dissemination of information about a person’s private and family life and breach of citizens’ right to privacy of communications. For the reasons set out in the preceding paragraphs these remedies are also available only to persons who are capable of submitting to the prosecuting authorities at least some factual information about the interception of their communications (see paragraph 24 above).
298. The Court concludes from the above that the remedies referred to by the Government are available only to persons who are in possession of information about the interception of their communications. Their effectiveness is therefore undermined by the absence of a requirement to notify the subject of interception at any point, or an adequate possibility to request and obtain information about interceptions from the authorities. Accordingly, the Court finds that Russian law does not provide for an effective judicial remedy against secret surveillance measures in cases where no criminal proceedings were brought against the interception subject. It is not the Court’s task in the present case to decide whether these remedies will be effective in cases where an individual learns about the interception of his or her communications in the course of criminal proceedings against him or her (see, however, Avanesyan, cited above, where some of these remedies were found to be ineffective to complain about an “inspection” of the applicant’s flat).
299. Lastly, with respect to the remedies to challenge the alleged insufficiency of safeguards against abuse in Russian law before the Russian courts, the Court is not convinced by the Government’s argument that such remedies are effective (see paragraphs 156 and 225 above). As regards the possibility to challenge the OSAA before the Constitutional Court, the Court observes that the Constitutional Court has examined the constitutionality of the OSAA on many occasions and found that it was compatible with the Constitution (see paragraphs 40 to 43, 50, 82 and 85 to 87 above). In such circumstances the Court finds it unlikely that a complaint by the applicant to the Constitutional Court, raising the same issues that have already been examined by it, would have any prospects of success. Nor is the Court convinced that a challenge of Order no. 70 before the Supreme Court or the lower courts would constitute an effective remedy. Indeed, the applicant did challenge Order no. 70 in the domestic proceedings. However, both the District and City Courts found that the applicant had no standing to challenge the Order because the equipment installed pursuant to that order did not in itself interfere with the privacy of his communications (see paragraphs 10, 11 and 13 above). It is also significant that the Supreme Court found that Order no. 70 was technical rather than legal in nature (see paragraph 128 above).
300. In view of the above considerations, the Court finds that Russian law does not provide for effective remedies to a person who suspects that he or she has been subjected to secret surveillance. By depriving the subject of interception of the effective possibility of challenging interceptions retrospectively, Russian law thus eschews an important safeguard against the improper use of secret surveillance measures.
301. For the above reasons, the Court also rejects the Government’s objection as to non-exhaustion of domestic remedies.
(?) Conclusion
302. The Court concludes that Russian legal provisions governing interceptions of communications do not provide for adequate and effective guarantees against arbitrariness and the risk of abuse which is inherent in any system of secret surveillance, and which is particularly high in a system where the secret services and the police have direct access, by technical means, to all mobile telephone communications. In particular, the circumstances in which public authorities are empowered to resort to secret surveillance measures are not defined with sufficient clarity. Provisions on discontinuation of secret surveillance measures do not provide sufficient guarantees against arbitrary interference. The domestic law permits automatic storage of clearly irrelevant data and is not sufficiently clear as to the circumstances in which the intercept material will be stored and destroyed after the end of a trial. The authorisation procedures are not capable of ensuring that secret surveillance measures are ordered only when “necessary in a democratic society”. The supervision of interceptions, as it is currently organised, does not comply with the requirements of independence, powers and competence which are sufficient to exercise an effective and continuous control, public scrutiny and effectiveness in practice. The effectiveness of the remedies is undermined by the absence of notification at any point of interceptions, or adequate access to documents relating to interceptions.
303. It is significant that the shortcomings in the legal framework as identified above appear to have an impact on the actual operation of the system of secret surveillance which exists in Russia. The Court is not convinced by the Government’s assertion that all interceptions in Russia are performed lawfully on the basis of a proper judicial authorisation. The examples submitted by the applicant in the domestic proceedings (see paragraph 12 above) and in the proceedings before the Court (see paragraph 197 above) indicate the existence of arbitrary and abusive surveillance practices, which appear to be due to the inadequate safeguards provided by law (see, for similar reasoning, Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 92; and, by contrast, Klass and Others, cited above, § 59, and Kennedy, cited above, §§ 168 and 169).
304. In view of the shortcomings identified above, the Court finds that Russian law does not meet the “quality of law” requirement and is incapable of keeping the “interference” to what is “necessary in a democratic society”.
305. There has accordingly been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
306. The applicant complained that he had no effective remedy for his complaint under Article 8. He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
307. Having regard to the findings under Article 8 of the Convention in paragraphs 286 to 300 above, the Court considers that, although the complaint under Article 13 of the Convention is closely linked to the complaint under Article 8 and therefore has to be declared admissible, it is not necessary to examine it separately (see Liberty and Others, cited above, § 73).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
308. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
309. The applicant claimed 9,000 euros (EUR) in respect of non-pecuniary damage.
310. The Government submitted that the claim was excessive, taking into account that the applicant had challenged Russian law in abstracto without being in any way personally affected by it. The finding of a violation would therefore constitute sufficient just satisfaction.
311. The Court reiterates that, in the context of the execution of judgments in accordance with Article 46 of the Convention, a judgment in which it finds a violation of the Convention or its Protocols imposes on the respondent State a legal obligation not just to pay those concerned any sums awarded by way of just satisfaction, but also to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. Furthermore, in ratifying the Convention, the Contracting States undertake to ensure that their domestic law is compatible with it (see Association for European Integration and Human Rights and Ekimdzhiev, cited above, § 111, with further references).
312. The Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicant.
B. Costs and expenses
313. Before the Chamber, the applicant claimed 26,579 Russian roubles (RUB, about 670 euros (EUR) on the date of submission) for postal and translation expenses. He relied on postal and fax service invoices and a translation services contract.
314. Before the Grand Chamber, the applicant claimed 22,800 pounds sterling (GBP, about EUR 29,000 on the date of submission) and EUR 13,800 for legal fees. He relied on lawyers’ time-sheets. Relying on bills and invoices, he also claimed GBP 6,833.24 (about EUR 8,700 on the date of submission) for translation, travelling and other administrative expenses.
315. The Government accepted the claim for costs and expenses made before the Chamber because it was supported by documentary evidence. As regards the claims for costs and expenses made before the Grand Chamber, the Government submitted that the claims had been submitted more than a month after the hearing. As regards the legal fees, the Government submitted that part of those fees covered the work performed by the representatives before the applicant had signed an authority form and that there was no authority form in the name of Ms Levine. Furthermore, the number of representatives and the number of hours spent by them on the preparation of the case had been excessive. There was moreover no evidence that the applicant had paid the legal fees in question or was under a legal or contractual obligation to pay them. As regards the translation and other administrative expenses, the Government submitted that the applicant had not submitted any documents showing that he had paid the amounts claimed. Nor had he proved that the translation expenses had been indeed necessary, given that some of the applicant’s lawyers spoke Russian. The rates claimed by the translators had been excessive. Lastly, the travelling expenses had been also excessive.
316. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 40,000 covering costs under all heads, plus any tax that may be chargeable to the applicant.
C. Default interest
317. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT
1. Joins, unanimously, to the merits the Government’s objections regarding the applicant’s lack of victim status and non-exhaustion of domestic remedies and declares the application admissible;
2. Holds, unanimously, that there has been a violation of Article 8 of the Convention and dismisses the Government’s above-mentioned objections;
3. Holds, unanimously, that there is no need to examine the complaint under Article 13 of the Convention;
4. Holds, by sixteen votes to one, that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;
5. Holds, unanimously,
(a) that the respondent State is to pay the applicant, within three months, EUR 40,000 (forty thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
6. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.
Done in English and French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 4 December 2015.
Lawrence Early Dean Spielmann
Jurisconsult President
In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) Concurring opinion of Judge Dedov;
(b) Partly dissenting opinion of Judge Ziemele.
D.S.
T.L.E.
CONCURRING OPINION OF JUDGE DEDOV
1. Competence of the Court to examine the domestic law in abstracto
As pointed out by the Government, doubts may exist as to the Court’s competence to examine the quality and effectiveness of the domestic law in abstracto without the applicant’s victim status being established and without determining that there had been interference with his right to respect for his private life in practice, and not merely theoretically.
This approach has already been used by the Court in interception cases in order to prevent potential abuses of power. In two leading cases, Kennedy v. the United Kingdom (no. 26839/05, §§ 122-123, 18 May 2010) and Klass and Others v. Germany (6 September 1978, § 34, Series A no. 28), against two prominent democratic States, namely the United Kingdom and the Federal Republic of Germany, the Court confirmed the effectiveness of the relevant domestic systems against arbitrariness. However, and regrettably, we cannot ignore the fact that both of these States have recently been involved in major well-publicised surveillance scandals. Firstly, the mobile telephone conversations of the Federal Chancellor of Germany were unlawfully intercepted by the national secret service; and secondly, the UK authorities provided a US secret service with access to and information about the former State’s entire communication database, with the result that the US authorities were able to intercept all UK citizens without being subject to any appropriate domestic safeguards at all.
This indicates that something was wrong with the Court’s approach from the very outset. It would perhaps be more effective to deal with applications on an individual basis, so that the Court has an opportunity to establish interference and to find a violation of the Convention, as indeed it regularly finds in relation to unjustified searches of applicants’ premises. Generally speaking, the problem in those cases does not concern the authorisation powers of the domestic courts, but the manner in which the judges authorise the requests for investigative searches.
The Court’s approach can easily shift from the actual application of the law to the potential for interference. Here are examples from the Kennedy case:
“119. The Court has consistently held in its case-law that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they were applied to, or affected, the applicant gave rise to a violation of the Convention (see, inter alia, Klass and Others, cited above, § 33; N.C. v. Italy [GC], no. 24952/94, § 56, ECHR 2002-X; and Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, § 26, 9 November 2006)”;
and from the Klass case:
“36…The Court finds it unacceptable that the assurance of the enjoyment of a right guaranteed by the Convention could be thus removed by the simple fact that the person concerned is kept unaware of its violation. A right of recourse to the Commission for persons potentially affected by secret surveillance is to be derived from Article 25 …, since otherwise Article 8 … runs the risk of being nullified”.
However, the German and English scandals referred to above confirm that, sooner or later, the individual concerned will become aware of the interception. One may find relevant examples in the Russian context (see Shimovolos v. Russia, no. 30194/09, 21 June 2011). The applicant in the present case is not aware of any interception of his communications, and this fact cannot be ignored by the Court.
The Court has on many occasions avoided examining cases in abstracto (see Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, § 79; Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II; Nejdet Sahin and Perihan Sahin v. Turkey [GC], no. 13279/05, §§ 68-70, 20 October 2011; Sabanchiyeva and Others v. Russia, no. 38450/05, § 137, ECHR 2013; and Monnat v. Switzerland, no. 73604/01, §§ 31-32, ECHR 2006-X). Thus, one can presume that the interception cases are unique. We then need to know the reasons why the Court should change its general approach when examining such cases. Yet we have no idea about what those reasons might be. If the legislation creates the risk of arbitrariness, then we need to see the outcome of that arbitrariness. I am not sure that a few examples (unrelated to the applicant’s case) prove that the entire system of safeguards should be revised and strengthened. I would accept such an approach if the Court had a huge backlog of individual repetitive petitions showing that Order no. 70 (on the connection of interception equipment to operators’ networks) is not technical in nature but that it creates a structural problem in Russia. If that is the case, however, we need a pilot procedure and a pilot judgment.
Every case in which the Court has found a violation of the Convention (more than 15,000 judgments) is based on the abuse of power, even where the domestic legislation is of good quality. Every abuse of power is a question of ethics, and cannot be eliminated by legislative measures alone.
The Court has consistently held that its task is not to review domestic law and practice in abstracto or to express a view as to the compatibility of the provisions of legislation with the Convention, but to determine whether the manner in which they were applied or in which they affected the applicant gave rise to a violation of the Convention (see, among other authorities, in the Article 14 context, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 90, 31 July 2008).
Article 34 of the Convention does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment (see Klass, cited above, § 33). These principles should not be applied arbitrarily.
2. Legislature and judiciary: the Court should respect differences
This case is very important in terms of the separation of functions between the Court and the Parliamentary Assembly of the Council of Europe, as it is necessary to separate the powers of the legislature and judiciary. The Parliamentary Assembly adopts recommendations, resolutions and opinions which serve as guidelines for the Committee of Ministers, national governments, parliaments and political parties. Ultimately, through conventions, legislation and practice, the Council of Europe promotes human rights, democracy and the rule of law. It monitors member States’ progress in these areas and makes recommendations through independent expert monitoring bodies. The European Court of Human Rights rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Taking account of the above separation of functions, the examination of a case in abstracto is similar to an expert report, but not to a judgment.
Morten Kjaerum, Director of European Union Agency for Human Rights (FRA), addressed a joint debate on fundamental rights at the European Parliamentary Committee on Civil Liberties, Justice and Home Affairs (LIBE) on 4 September 2014. The Director pointed out:
“The Snowden revelations of mass surveillance highlighted the fact that the protection of personal data is under threat. The protection of the right to privacy is far from sufficient when we look across Europe today. Following last year’s debates, we very much welcome the European Parliament’s request to the Fundamental Rights Agency to further investigate the fundamental rights and safeguards in place in the context of large-scale surveillance programmes. And of course you will be informed probably towards the end of this year about the findings of this particular request.
But it’s not only the big surveillance programmes. There are also misgivings about oversight mechanisms in the area of general data protection. When we give data to health authorities, to tax authorities, to other institutions, public or private. We see from the work of the Fundamental Rights Agency that the national oversight structures in the EU are currently too weak to fulfil their mission. Data protection authorities, which are established in all Member States have an important role to play in the enforcement of the overall data protection system, but the powers and resources of national data protection authorities urgently needs to be strengthened and also their independence needs to be guaranteed.
Finally, I would also highlight that those who are entrusted to store the data, whether it is private or public, that the institutions need to be accountable, at a much stronger level that we see today if the safeguards that they create are not sufficiently in place.”
These remarks were addressed to the newly elected members of the European Parliament (rather than to judges), raising issues of concern across Europe and calling for more a sophisticated system of data protection. The aim of the speech was to initiate public debate in order to find effective measures and to promote proper ethical standards in society; the courtroom is not a place for such a debate.
I would suggest that the Court more properly focus on a particular interference and the effectiveness of the measures in place to prevent that specific violation (as the Court usually does in all other categories of cases). This is the Court’s primary task: to establish that an interference has taken place and then to examine whether the interference was lawful and necessary in a democratic society. It is ethically unacceptable for judges to presume that every citizen in a particular country could be under unlawful secret surveillance without knowledge of the facts. A judgment cannot be built on the basis of allegations.
The Court has used many tools to fight against violations. One of them was to find a violation of Article 10 on account of an intelligence service’s refusal to provide information to the applicant organisation about individuals placed under electronic surveillance for a specified period (Youth Initiative for Human Rights v. Serbia, no. 48135/06, 25 June 2013). In the operative part of that judgment, the Court invited the Government to ensure that the disputed information was made available to the applicant organisation (without waiting for measures to be proposed by the Committee of Ministers). I recognize this as an effective measure and a judicial success.
3. The “reasonable likelihood” approach should be developed
Establishment of the applicant’s victim status is an integral part of the judicial process. Article 34 of the Convention provides that “the Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto”. The notion of “victim” does not imply the existence of prejudice (see Brumarescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999-VII).
The Court has previously ruled that, while the existence of a surveillance regime might interfere with privacy, a claim that this created a violation of rights was justiciable only where there was a “reasonable likelihood” that a person had actually been subjected to unlawful surveillance (see Esbester v. the United Kingdom, no. 18601/91, Commission decision of 2 April 1993; Redgrave v. the United Kingdom, application no. 202711/92, Commission decision of 1 September 1993; and Matthews v. the United Kingdom, application no. 28576/95, Commission decision of 16 October 1996). These references are to inadmissibility decisions, since all of the allegations of interception were considered manifestly ill-founded.
However, the Court changed its approach completely in the Klass case: “… it could not be excluded that secret surveillance measures were applied to him or that the applicant was potentially at risk of being subjected to such measures” (Klass, cited above, §§ 125-129). Today we see that this change in the case-law was not effective.
The term “reasonable likelihood” implies that there are negative consequences for an applicant who is potentially subject to secret surveillance, on account of certain information that is made available to the authorities through interception, and excluding the possibility that this information could be uncovered by other means. The Court made this approach dangerously simple in order to examine the merits of these cases, presuming that persons who are subject to secret supervision by the authorities are not always subsequently informed of such measures against them, and thus it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the Court concluded that applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims. The applicants in the Klass and Liberty (Liberty and Others v. the United Kingdom, no. 58243/00, 1 July 2008) cases were lawyers and theoretically “they could [have been] subject to secret surveillance in consequence of contacts they may have with clients who might be suspected of illegal activities” (Klass, § 37).
In the Kennedy case the applicant alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. The applicant suspected that this was because his mail, telephone and email communications were being intercepted, and the Court took this into serious consideration, rejecting the Government’s objections that the applicant had failed to show that there had been interference for the purposes of Article 8, and that he had not established a reasonable likelihood. The Court also rejected the non-exhaustion submissions, in spite of the fact that the applicant had not checked the quality of telecoms services with his operator, but had made subject access requests to MI5 and GCHQ (the United Kingdom’s intelligence agencies responsible for national security) under the Data Protection Act 1998.
Returning to the circumstances of the present case, it can reasonably be concluded that the interconnection between the telecoms equipment and the interception equipment does not necessary mean that interception of the applicant’s telephone conversations has actually taken place. Nor can the Court base its findings on the presumption of the “possibility of improper action by a dishonest, negligent or over-zealous official” (see Klass, §§ 49, 50, 59; Weber and Saravia v. Germany (dec.), no. 54934/00, § 106, ECHR 2006-XI; Kennedy, §§ 153-154). Equally, the Court cannot presume in general (in order to examine the case in abstracto) the existence of State violence against the opposition movements and other democratic institutions in the respondent State, even if corresponding resolutions have been adopted by the Parliamentary Assembly. The Court must maintain its impartiality and neutrality.
4. Role of the judiciary in civil society
Nonetheless, I have voted for admissibility and for the finding of a violation of Article 8 of the Convention on account of the fact that the fundamental importance of safeguards to protect private communications against arbitrary surveillance, especially in the non-criminal context, was never addressed in the domestic proceedings. The Russian courts refused to address the applicant’s allegations on the merits, mistakenly referring to the technical nature of the impugned ministerial orders. As a national judge, I cannot ignore the fact that a widespread suspicion exists in Russian society that surveillance is exercised over political and economic figures, including human-rights activists, opposition activists and leaders, journalists, State officials, managers of State property – in other words, over all those who are involved in public affairs. Such a suspicion is based on past experience of the totalitarian regime during the Soviet era, and even on the long history of the Russian Empire.
This judgment could serve as a basis for improving the legislation in the sphere of operational and search activities and for establishing an effective system of public control over surveillance. Moreover, this judgment demonstrates that if widespread suspicion exists in society, and if there is no other possibility for society to lift this suspicion without a social contract and appropriate changes in national law and practice, then where the problem is not identified by the other branches of power, the judiciary must be active in order to facilitate those changes. This is even more obvious if there are no other means available to protect democracy and the rule of law. This is an important role which the judiciary must play in civil society.
The Court could be criticised for failing to provide more specific reasoning for its in abstracto examination within the social context, with the observation that the Court has merely followed its own Chamber case-law. However, the judgment in the present case is a difficult one, since before reaching their conclusion the judges had to take care to establish whether or not all other means were useless. In contrast, in the case of Clapper v. Amnesty International USA (568 U.S. ___ (2013), the US Supreme Court failed to take a step forward, despite the existence of a mass surveillance programme and “the widespread suspicion” of its existence (or, in other words written by Justice Breyer in dissent, “[the harm] is as likely to take place as are most future events that common-sense inference and ordinary knowledge of human nature tell us will happen”). Instead, it rejected as insufficient the argument by the plaintiffs (including human-rights, legal and media organisations) that they were likely to be subject to surveillance due to the nature of their work.
I shall stop here, leaving the discussions on judicial aggression, activism or restraint for academics. I should like merely to close my opinion by quoting Edward Snowden’s remark: “With each court victory, with every change in the law, we demonstrate facts are more convincing than fear. As a society, we rediscover that the value of the right is not in what it hides, but in what it protects”.
PARTLY DISSENTING OPINION OF JUDGE ZIEMELE
1. I fully agree with the finding of a violation in this case. The Court has rendered a very important judgment on a matter of principle, since secret surveillance as carried out in the manner described in the facts of the case is, in its very essence, incompatible with the rule of law and the principles of democracy.
2. It is especially in such a context that I cannot agree with the Court’s decision not to award any compensation for the non-pecuniary damage sustained. I consider that the applicant’s claim for damages was very reasonable (see paragraph 309 of the judgment) and that the finding of a violation, while very important as a matter of principle in this case, is not appropriate satisfaction for the applicant’s specific situation. I therefore voted against operative provision no. 4.
Domican v AXA Insurance Ltd
[2007] I.E.H.C. 14JUDGMENT of Mr. Justice Clarke delivered the 19th January, 2007.
1. Introduction
1.1 The net issue in this case arises in the changing landscape within which claims relating to personal injury are now progressed. The background to the dispute between the parties stems, at least in part, from the operation of the Personal Injuries Assessment Board (“PIAB”). However the proceedings do not involve PIAB itself, but rather what are contended to be knock on effects of the establishment of PIAB on the negotiation of early settlement of straightforward personal injury claims.
1.2 In simple terms the issue between the parties concerns the question as to whether the defendant (“AXA”), in its capacity as insurer, is entitled to copy its correspondence concerning the claim made by the plaintiff (“Mr. Domican”) to Mr. Domican directly notwithstanding the fact that Mr. Domican has given written instructions to the effect that all such correspondence should be addressed to his solicitors and that no contact is to be made directly with him.
2. Procedural History
2.1 The dispute between the parties having arisen, Mr. Domican issued proceedings and brought an application seeking an interlocutory injunction restraining AXA “from interfering in the solicitor/client relationship between the plaintiff and his solicitor by communicating .. directly with the plaintiff .. or otherwise howsoever harassing or molesting the plaintiff in connection .. with his claim for damages against one Patrick Doyle for personal injuries suffered and sustained as a result of an accident on 17th July, 2005 on the Collinstown Road, Clondalkin, Dublin 22.”
2.2 A supplementary order was also sought directing AXA to abide by written authority signed by Mr. Domican of 28th August, 2006 relating to the same claim for damages. That written authority sought to direct AXA to communicate with Mr. Domican only through his solicitors.
2.3 AXA also brought a motion before the court which sought an order dismissing Mr. Domican’s claim on the grounds that it failed to disclose a stateable cause of action or was frivolous, vexatious and an abuse of the court process and bound to fail.
2.4 It being clear that there were no significant issues of fact between the parties and that the question of law raised, while to an extent novel and undoubtedly of some importance, was nonetheless quite net, I suggested, and the parties readily agreed, that the trial of both motions would be treated as the trial of the action. Both applications were heard together on that basis and this judgment is, therefore, directed to the question of whether Mr. Domican is entitled, in all the circumstances of the case, to the relief which he claims.
3. The Facts
3.1 As is implicit in the orders sought, Mr. Domican claims to have been injured in a road accident, which injuries, he says, are attributable to the negligence of an insured of AXA. It does not appear to be in dispute but that AXA are liable to indemnify the person concerned and that, therefore, at a commercial level, the question of the payment of compensation to Mr. Domican arises, in practice, between him and AXA.
3.2 Mr. Domican’s claim progressed in a normal manner. Messrs. H.J. Ward and Company Solicitors, (“Mr. Domican’s solicitors”) whom he had instructed, wrote to Patrick Doyle on 28th August, 2006 seeking an admission of liability on the part of Mr. Doyle in relation to the accident. Mr. Domican’s solicitors were already aware of the fact that AXA appeared to be the insurers of Mr. Doyle and wrote on the same date to AXA enclosing a copy of the letter to Mr. Doyle and also a letter of authority from Mr. Domican. Amongst other things the letter of authority contained the following statement:-
“I do not wish to receive any communication from you by way of correspondence. Similarly, if you wish to make contact with me by telephone, please do so by telephoning my solicitors and leave any message with them. Please do not contact me”.
3.3 In accordance with the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”) and in particular ss. 11 and 50 of that Act, it was necessary for Mr. Domican to first make an application for an assessment of his claim to PIAB. This, together with appropriate supporting documentation, was done by letter of 15th September, 2006. PIAB having drawn attention to an incompleteness in the application, and having had that matter dealt with, acknowledged, on the 29th September, 2006, that the application was complete for the purposes of s. 50 of the 2003 Act.
3.4 It is, of course, therefore, the case that, so far as court proceedings are concerned, the matter as and between Mr. Domican and Mr. Doyle (and in reality AXA on behalf of Mr. Doyle) is frozen until such time as PIAB have dealt with the case. That is not, however, a barrier to a settlement of the proceedings being reached between Mr. Domican and AXA at any stage.
3.5 Against that background AXA sought to progress the question of possible settlement by correspondence directed to Mr. Domican’s Solicitors but, it would appear, copied in each case directly to Mr. Domican. There can be no doubt that the copying of the correspondence to Mr. Domican was in breach of his request to AXA not to contact him directly. The question that arises in this case is as to whether, in copying the correspondence directly to Mr. Domican, contrary to Mr. Domican’s request, AXA are acting in anyway unlawfully such as would justify the court intervening by way of injunction. Those undisputed facts are sufficient for the issue to arise. However there are a number of other factual matters that were canvassed in the course of the affidavit evidence filed by the parties, on which it is necessary to touch before going on to consider the legal issues which arise.
4. Some Facts in some controversy
4.1 While there are no disputes between the parties as to the primary facts in this case there are some aspects of the factual contentions put forward that, while not directly material to the issues, are relevant to the background to the dispute and in relation to which there is at least some difference of opinion as to how the facts should be interpreted or characterised. I propose dealing with some of those issues.
4.2 The first matter concerns the position adopted by Mr. Domican, on advice his solicitors, in relation to an early settlement. It is clear that Mr. Domican was advised that his best interests would lie in awaiting an assessment of his claim by PIAB. In the course of the hearing it was suggested that the reason for such advice stemmed from the experience of those advising Mr. Domican that the level of compensation likely to be assessed by PIAB would exceed, in many cases, any amount offered at that stage by AXA so that it was, it is said, in Mr. Domican’s interest to wait and see what PIAB would award. It is certainly the case that it was maintained in correspondence on behalf of Mr. Domican by his solicitors that it was, in their experience, the case that offers made by AXA during a period while the case was under assessment by PIAB were, invariably, less than the amount which PIAB ultimately determined on. It is not for me, in this case, to determine whether that assertion is factually accurate. I should, however, comment that it seems to me that there is at least an arguable basis for the advice given to Mr. Domican and no established basis for suggesting that it was not reasonable advice designed to achieve the best possible award of compensation for his injuries. In substance, though not put this way, the advice was to the effect that it was likely that he would ultimately achieve a higher sum in compensation if he were to wait and see what assessment PIAB came up with.
4.3 A second factual issue arose in connection with correspondence in early October 2006 in which AXA states that “claims processed by Personal Injuries Assessment Board (PIAB) can take up to a year before an award is issued …”. A number of observations seem to me to be appropriate. Firstly it is interesting that a significant insurance company appears to be suggesting to those who may have claims against it that there are delays in PIAB which are holding up the early resolution of proceedings. It is, again, neither necessary or appropriate for me to reach any conclusions as to whether that assertion is factually accurate. I note that Mr. Ward (the solicitor for advising Mr. Domican) has indicated in the course of his affidavit in these proceedings that the assertion concerned is in conflict with his experience and that any delays are, at least in material part, due to the failure of AXA to progress matters with PIAB in a timely manner. If it were to be true that the existence of PIAB was acting as a barrier to early settlement of any significant number of cases it would amount to an unfortunate consequence of legislation introduced to improve and streamline the resolution of straightforward personal injury litigation.
4.4 In particular, however, complaint is made on behalf of Mr. Domican that the communications containing those assertions amounted, in effect, to seeking to undermine the advice given to Mr. Domican by his solicitors. This is an issue to which I will have to return.
4.5 A further area of controversy concerns the circumstances surrounding a medical appointment arranged by AXA for Mr. Domican. It would appear that AXA raised the question of a medical appointment for Mr. Domican, with a medical assessor to be appointed by AXA, in correspondence and then proceeded, unilaterally it would appear, to make a specific appointment for Mr. Domican without ascertaining in advance his willingness to attend such an appointment. In the event he did not attend the appointment and in subsequent correspondence AXA drew attention to the fact that costs had been incurred by reason of the fact that the appointment was not met without prior cancellation. While it is, strictly speaking, true to state that the relevant correspondence, on a careful reading, does not purport to seek to make Mr. Domican responsible for those costs, it seems clear on the affidavit evidence that both he and his legal advisors interpreted the letter as seeking to impose such costs upon Mr. Domican. I have to say that I can see how the letter might have been so read even though, on a careful construction, no actual threat to seek to impose such costs is to be found in the letter.
4.6 There is nothing, of course, wrong with AXA seeking to have Mr. Domican, or any person in his position, attend to a medical examination. Such an examination may well facilitate settlement of the proceedings, for if there is relative unanimity in the medical opinion as to the actual injury suffered, then it will be much easier to arrive at an agreed valuation of the appropriate compensation to be paid. It is also clearly the case that the court has a discretion to stay proceedings for personal injuries where a plaintiff unreasonably fails or refuses to attend a medical examination arranged by the defendant or, in practice, the defendant’s insurers. However there is no legal obligation on a potential plaintiff to attend for such a medical examination until proceedings have been commenced and have reached a stage where it is appropriate for the defendant to seek such an examination. Since the advent of PIAB, proceedings will be postponed (in those cases which ultimately go to court) until after the claim has been through the PIAB process. That will, inevitably, lead to a situation where the legal entitlement of a defendant to obtain a medical examination will be delayed. However that situation is an inevitable consequence of the freezing of legal proceedings which is an inherent part of the PIAB process.
4.7 While it is, therefore, open to an insurer, such as AXA, to seek a medical examination while a plaintiff’s claim is frozen, so far as court proceedings are concerned, pending a decision from PIAB, it is equally clear that a claimant, such as Mr. Domican, is entitled, at that time, to refuse any such invitation. In such circumstances I do have to say that it seems to me that it was somewhat foolish of AXA to arrange an actual medical appointment at a time when they had not secured Mr. Domican’s agreement to attend to any appointment. In those circumstances the tone of the letter of complaint could reasonably be described as unfortunate.
4.8 Finally a further factual issue has arisen concerning an offer of settlement which was contained in correspondence from AXA to Mr. Domican’s solicitors and copied directly to Mr. Domican. There is, again, nothing objectionable in AXA making such an offer and indeed such a practice is to be encouraged given the public policy considerations which favour the early settlement of potential litigation. Nothing in either the principles behind or the detailed provisions of the 2003 Act, have altered the policy considerations which favour the early settlement of claims. However it must equally be said that the position taken by Mr. Domican, on advice from his solicitors, that he would be best advised to wait and see what came out of PIAB by way of an assessment of his claim is equally a sustainable position. What gives rise to controversy is that it does not appear that Mr. Domican’s solicitors were informed of the fact that the letter making the offer in settlement had been copied directly to Mr. Domican. This is stated on behalf of AXA to be an oversight. It would appear that in respect of all other elements of correspondence copied to Mr. Domican the original was sent to his solicitor (frequently by fax) but in so sending it was made clear that the relevant correspondence was being copied to Mr. Domican. This does not appear to have occurred in relation to the letter of offer.
4.9 It would also appear that Mr. Domican’s solicitors were able to point to another case (unconnected with these proceedings) in which an identical practice appears to have been engaged in by AXA, in that all correspondence was copied directly to the claimant concerned, and in respect of all of the relevant correspondence with the exception of a letter of offer, it was made clear in the communication to the solicitors concerned that the relevant correspondence was being copied to their client. Whether or not the case of Mr. Domican and the other relevant case represent two coincidental errors, or a practice on the part of AXA, is not possible to conclude on the evidence currently before me. However it must be said that it is somewhat suspicious that the same error should have occurred at the same point in the process in two separate cases. That is particularly so when the error appears to have related to what might well be regarded as the most important part of the process, that is to say the communication of a specific offer in settlement. If it were to be the case that AXA has or had a deliberate practice to that effect then it could only be inferred that the purpose of such a practice was to attempt to communicate an offer directly to the claimant concerned without the claimant’s solicitors being aware of the fact that such an offer had been directly communicated to the client.
4.10 There are, therefore, certain aspects of the facts which justify adverse comment about AXA’s practice. The manner in which the missed medical appointment was dealt with seems to me to be unreasonable. There is the possibility that there might be a practice of communicating a copy of an offer in settlement made to the solicitor, directly to the client, in circumstances where the solicitor concerned was not informed of the copying. It is also common case that the direct copying of communications, of what ever form, and even if not subject to the above criticisms, to Mr. Domican was against his expressly communicated wishes.
However the real issue in this case is not as to whether the practice engaged in by AXA (which appears to be a standard practice of the company) might be the subject of legitimate complaint by Mr. Domican but rather whether there is anything unlawful about it. I now turn to that question.
5. The Law
5.1 A variety of possible bases for suggesting that the largely agreed facts of this case demonstrate a legal basis for the reliefs claimed were canvassed in the course of argument.
5.2 Firstly, although not pressed as the strongest point, it was suggested that the receipt of communications from AXA which Mr. Domican, to the knowledge of AXA did not wish to receive, amounted to a breach of Mr. Domican’s constitutional right to privacy. That such a right exists has been clear since Magee v. Attorney General [1974] IR 284 and Kennedy v. Ireland [1987] I.R. 587. As I observed in Cogley v. RTE [2005] 4 IR 79:-
“It is … clear from Kennedy v. Ireland that a right to privacy is one of the personal rights of the citizen guaranteed by, though not specifically mentioned in, the constitution.
However it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.”
5.3 As against those undoubted rights must also be considered AXA’s undoubted constitutional right to communicate. Such a right has also been identified in such cases as Attorney General v. Paperlink [1984] ILRM 373 and Murphy v. Independent Radio and Television Commission [1999] 1 IR 12. Equally such a right is not absolute and is subject to qualification.
5.4 It must also be noted that the background to the relationship between the parties to these proceedings is that they are, inevitably, involved with each other. The plaintiff has a claim which, in commercial substance though not in form, is as against AXA. They are not, therefore, total strangers, and it is necessary that there be some communication between them with appropriate respect for both parties rights. I am not satisfied that it has been established that Mr. Domican’s right to privacy extends to the narrow question of the manner in which communication with him is to be conducted. Indeed most of the decided cases involve obtaining and disclosing information rather than communicating information. Clearly if the manner of such communisation were oppressive different considerations might apply. However it can hardly be said that the simple receipt of information by being copied directly with it in circumstances where the person concerned will, necessarily, have to receive the same information indirectly through his solicitors could in any event amount to a breach of the constitutional right to privacy.
5.5 In similar vein it does not seem to me that the actions of AXA could be said to be in breach of the right to privacy guaranteed by the European Convention on Human Rights as applied in Ireland by the European Convention on Human Rights Act, 2003.
5.6 For similar reasons I have come to the view that the actions of AXA could not amount to a private nuisance or to harassment or molestation. I leave for consideration to a case where, on the facts, the issue arises in an appropriate manner, the question as to whether excessive communication by letter, fax, telephone or any other medium might amount to a private nuisance and the question of whether similar actions might among to harassment sufficient to give rise to a civil wrong. Certainly Khorasandjian v. Bush (1993) 2 FLR 66 suggests such a possibility. If such a cause of action is found to exist it seems to me that it could only arise where the extent of the communication was such as might interfere, to a material extent, with the reasonable enjoyment by a person of their home, place of business, or life. It is difficult to see how the communications in this case would qualify under that heading. Irrespective of the legal parameters that might apply to any such claim, such a claim some could not, it seems to me, arise on the facts of this case under either of those headings.
5.7 That leads to the last, and most difficult, of the issues raised. It is suggested that the course of action adopted by AXA amounts to an infringement of the plaintiff’s solicitor/client relationship. That any claimant is entitled to the benefit of legal representation in proceedings, or potential proceedings, cannot be doubted. It may well be that any action taken by an opposing party or potential party whose object or significant effect was to impair the entitlement to obtain and benefit by such legal advice and representation might well amount to a sufficient interference in the course of justice as would entitle a court to intervene.
5.8 However it is necessary to identify the extent to which the actions of AXA in this case, even taken at their height, could be said to amount to an interference in the solicitor/client relationship. With the exception of the contention, to which I have referred, concerning the comments made by AXA in correspondence concerning delays likely to be encountered in PIAB, none of the other elements of the correspondence seems to touch directly on any aspect of the relationship between Mr. Domican and his advisors. All of the correspondence is, as a matter of form, directed to his solicitors. The correspondence is merely copied to Mr. Domican, albeit against his wishes. The contents of the correspondence contains entirely appropriate matter to be communicated in a process such as that with which all concerned were involved. As previously indicated there was nothing wrong in seeking to have a medical examination. Furthermore it was entirely appropriate for AXA to make an offer in settlement.
5.9 This leads me to one somewhat curious aspect of the argument in this case. It was expressly stated on behalf of AXA that no criticism of any sort was being levelled against Mr. Domican’s advisors. In passing it should be noted that the practice shown on the facts of this case appears to be a general practice engaged in by AXA. It, therefore, applies irrespective of what firm of solicitors may be instructed on behalf of the claimant concerned. It should also be noted that it was asserted, and would appear to be the case, that it is a general practice on the part of the solicitors advising Mr. Domican (and also possibly other firms of solicitors) to obtain a written authority from their clients in a similar form to that obtained from Mr. Domican in this case. There would appear, therefore, to be a significant number of cases in which various firms of solicitors communicate on behalf of their clients to AXA that the client concerned does not wish to receive direct communication. It appears to be the universal practice of AXA to ignore such requests. Hence the issues which arise in these proceedings appear likely to arise in a significant number of cases.
5.10 I note these matters to emphasise that no criticism was voiced on behalf of AXA, in general terms, in respect of the solicitors involved in any such cases where a dispute may arise as to the appropriateness or otherwise of correspondence being copied directly to the client. The reason why I touch upon the absence of criticism is that it seems to me, at least to some extent, to be inconsistent with the stated basis for the desire on the part of AXA to copy correspondence directly to the client. That stated basis is to the effect that it is desired to bring about early settlement where possible. It follows that it must be the view of AXA that the copying of correspondence directly to the client is more likely to lead to an early settlement than merely corresponding directly with the solicitor concerned. For that to be true there must be at least an implicit criticism to the effect that solicitors in general are insufficiently proactive in progressing possible settlement negotiations on behalf of their clients and that it is necessary to involve the client directly to keep pressure on the solicitor so as to achieve such an early settlement. If AXA did not believe that to be the case then it is hard to see how the practice engaged could be of any benefit. The only reasonable inference to draw is, therefore, that the practice is designed to make it more likely that the client concerned will raise the questions dealt with in correspondence directly with their solicitor quicker than the solicitor might, if left to his or her own devices, raise the question with the client.
5.11 The only authorities to which I was referred which touch upon the question of communications directly with parties who have legal representation, do not seem to me to deal, in any material way, with the issues which I have to decide in this case.
AXA draws attention to Re Margetson and Jones (1897) 2 Ch 314 where it was held by Kekewich J. that:-
“It is a professional rule that where parties to a dispute are represented by solicitors neither of those solicitors should communicate with the principle of the other touching the matters in question. That is a rule binding the profession as gentlemen, but it is only highly consonant with good sense and convenience …”.
However the court went on to observe:-
“But the courts have uniformly held, without in the least degree impeaching the propriety and advantage of that rule, that if the solicitor for the one party meets the principal on the other side and a bargain is made, that bargain is good. It cannot be said that the principal’s authority is gone, because such a thing as that is impossible; and therefore, whether there is a litigation pending or not, if the solicitor for the defendant meets the plaintiff and effects a comprise with him, that comprise is binding upon the plaintiff or the defendant, as the case may be, notwithstanding that up to that time had had been represented by a solicitor. That is as consonant with common sense as the rule itself; but what the court has also said is that it must be done honestly and in a straightforward way to get rid of the litigation for the sake of peace, and not with a view to depriving the solicitor of his costs. If the one solicitor meeting the party on the other side, or the two parties comprise knowing of the lien of the solicitor and intending to defeat it, that shall not be allowed; and the only question, therefore, is whether that was the intention”.
5.12 That case was, as the above passages demonstrate, concerned with a situation where both sides were represented by solicitors and where the solicitor on one side effected a settlement directly with the client on the other side. In principle the settlement was upheld subject to the caveat that if the agreement was reached for an improper purpose it might be set aside. There might, of course, be other situations where a settlement arrived at in such circumstances might also be set aside. The case is, nonetheless, authority for the proposition that direct contact with a client, even though he may have a solicitor, is not necessarily unlawful even though it may, if done by a solicitor, be unprofessional.
5.13 However it would seem clear that what the court was concerned with in Margetson was a case where the client, or principal, on one side was happy to engage in negotiations directly with the solicitor on the other side and without the benefit of his own solicitor being present. The case has little, therefore, to say about a situation, such as arises here, where the principal, or client, has expressly stated that he does not wish the communication to take place.
5.14 Mr. Domican drew attention to the decision of MacMenamin J. in O’Brien v. PIAB (Unreported, High Court, MacMenamin J., 25th January, 2005). In that case MacMenamin J. determined that the practice adopted by PIAB in declining to accept or act upon client authorisation and by corresponding directly with the client concerned was in breach of s. 7 of the 2003 Act. The case was, therefore, principally about statutory construction and the question of whether it is appropriate or possible to exclude a client from having his solicitor, if he so wished, be the point of contact. It should also be noted that that case is under appeal. In any event it seems to me to deal with a different issue to the one with which I am faced in this case. O’Brien was not about excluding the client from being subject to direct contact.
6. Conclusions
6.1 There does not, therefore, seem to be any significant authority on the point in issue in these proceedings. I have come to the view that, as a matter of principle, a party’s entitlement to have access to the courts and to have the benefit of legal assistance in so doing, carries with it an entitlement to restrain any action which would amount to a material or significant interference with such parties relationship between them and their legal advisors in the context of litigation or potential litigation.
6.2 The real issue which falls for decision in this case is as to whether the actions of AXA can be so characterised. I have come to the view that they cannot. It does not seem to me to be appropriate to conclude that the mere copying of information directly to the client, which information the solicitor would, in any event, be under a duty to tell the client about, to advise the client on, and to act on the client’s instructions arising out of, amounts to a significant or material interference in the solicitor/client relationship.
6.3 If it were to transpire to be the case that any of the actions of a party such as AXA were designed to or would objectively speaking, be likely to, undermine the solicitor/client relationship in any material respect then I would come to a different conclusion. Under that heading the only matter that could conceivably be advanced as being likely to give rise to such a consequence is the statement contained in the AXA letter concerning the delays likely to be encountered in PIAB. It is said that that statement had the potential to undermine the advice given to Mr. Domican to await the PIAB determination. I am not satisfied that that is a reasonable assessment of the AXA letter. The AXA letter simply contains a generalised statement about delays in PIAB as a means for suggesting that there should be an early settlement independent of PIAB. The merits or otherwise of engaging in such an early settlement are a matter upon which parties can form there own view and will, in so doing, doubtless take into account a variety of factors. It does not seem to me to be an issue which could be said to have the potential, to any material extent, to undermine the relationship between a client and his or her solicitor. It should be noted, however, that there might well be aspects of correspondence that might pass between an insurance company and a firm of solicitors acting for a claimant in the course of progressing a claim which correspondence may be less routine than that engaged in in this case. Some such cases may become acrimonious. The correspondence may reflect that fact. There may well be circumstances where the copying of such correspondence directly to the client might be reasonably understood by a client to amount to a suggestion on the part of the insurers that the client’s best interests were not being looked after by the solicitor concerned. In such circumstances the direct copying of correspondence might give rise to different inferences and might amount to a material interference in the solicitor/client relationship. Nothing in this judgment should be taken, therefore, as implying that the copying of correspondence is always, and in all circumstances, lawful. Similarly the volume of communication, or its manner, might, in a different case, amount to nuisance, harassment or molestation.
6.4 However for the reasons which I have set out, and on the facts of this case, which concern merely the copying of a small number of letters of a relatively normal, almost routine, nature could amount to any of the legal wrongs asserted. In those circumstances I would propose to dismissing the plaintiff’s claim.
Gray v Minister for Justice, Equality and Law Reform
[2007] I.E.H.C. 52, Quirke J. JUDGMENT of Mr. Justice Quirke delivered on the 17th day of January, 2007
The first and second named plaintiffs are the married parents of five children. The third named plaintiff is their eldest son, who is now 26 years old.
The plaintiffs’ family was permanently resident in Blanchardstown, in Dublin until 1995 when the family moved to Ballybunion in Co. Kerry under the terms of a rural resettlement scheme introduced by the government.
After arrival in Ballybunion the family was accommodated in houses close to the town for two successive 12 month periods. The family members were then provided with a permanent house in Marconi Avenue in Ballybunion, which is a small housing estate in the town. They settled successfully into their new home and the first-named plaintiff, Alan Gray, who is a steel erector, obtained employment at various locations in Kerry, in Co. Clare and in Co. Cork.
On a date between the 8th April 1999 and the 12th April 1999 the plaintiffs and their family members decided to abandon their home in Marconi Avenue in Ballybunion and to return to live permanently in Dublin.
They claim that they were forced to abandon their home by reason of the unlawful actions of members of An Garda Síochána in Kerry who, they claim;
(a) wrongfully, negligently and unlawfully disclosed to journalists in The Kerryman newspaper and The Examiner newspaper and to other journalists and members of the media that James O’Donoghue, who was and is a dangerous convicted rapist, was living with them in their home in Marconi Avenue, Ballybunion. As a result, it is claimed, the plaintiffs were subjected to abuse, harassment and intimidation of such a character that they were obliged to leave their home in Ballybunion permanently.
(b) acted in breach of a duty of confidence owed by the State to the plaintiffs not to disclose sensitive and inflammatory information to the media when such disclosure was likely to place the information in the public domain and to result in the harassment and intimidation of the plaintiffs and a violation of their constitutionally protected right to live peacefully in their home.
(c) on the 4th April, 1999, through two of its members, unlawfully entered the plaintiffs’ home in Marconi Avenue, assaulted and battered the third-named plaintiff, Francis Gray and threatened James O’Donoghue with physical violence if he did not leave Ballybunion.
The plaintiffs claim damages for personal injuries, loss, damage, upset, inconvenience and distress which, they say, they have suffered as a direct consequence of the unlawful actions of members of the Gardaí who are the servants and agents of the State.
Relevant facts
1. In February of 1999, Alan Gray, at the request of his brother, agreed to provide his nephew, James O’Donoghue with temporary accommodation for a short time in the Gray home in Ballybunion. James O’Donoghue had been convicted on a charge of violent rape and had been sentenced to serve a term of 15 years imprisonment.
He had served 12 years of that sentence and was due to be released on the 15th February. He had earlier convictions for robbery and indecent assault. Arising out of his earlier convictions he complained that he had been subjected to a serious assault. He made it known that he was very fearful that he would be violently assaulted upon his release from prison. It was because of his fears that his father requested his brother, (the first-named plaintiff, Alan Gray), to provide him with temporary accommodation in Ballybunion.
Alan Gray agreed to do so for a short time, (estimated to be a few weeks). Alan Gray’s wife, Phyllis, the second-named plaintiff was very unhappy with this arrangement but was reluctantly persuaded to agree to accommodate James O’Donoghue for a short time.
Immediately after his release on the 15th February, 1999, James O’Donoghue, who was then in his early 30’s, arrived in Ballybunion where he took up residence in the Gray family home in Marconi Avenue.
2. After their arrival in Ballybunion in 1995 the plaintiffs’ children had settled happily into the community in Ballybunion. They attended the local community school and actively and happily participated in community activity.
In February of 1999, when James O’Donoghue arrived in Ballybunion the plaintiffs’ daughter Lucy was sixteen years old. Their sons, Alan (Junior), Paul and Robert were aged thirteen years, ten years and eight years respectively.
At that time there were six uniformed and one detective Gardaí attached to Ballybunion Garda Station. The Garda Station was manned between the hours of 9 a.m. and 2 p.m. daily and was under the administrative and supervisory control of the Garda District Headquarters at Listowel.
3. On 25th March, 1999 Garda Daniel O’Connor, a uniformed Garda attached to Ballybunion Garda Station, was requested to investigate the whereabouts of James O’Donoghue on 16th March, 1999. The request came from the Garda Divisional Headquarters at Listowel and arose as the result of an enquiry from a Garda Martin Walsh of Ronanstown in Dublin. Garda Walsh was then investigating a criminal sexual offence in Clondalkin in Dublin which was alleged to have occurred on 16th March, 1999.
Arising out of the enquiry Garda O’Connor went to Marconi Avenue in Ballybunion on 25th March, 1999. He met with the first and second named plaintiffs, Alan and Phyllis Gray, who were walking close to their home. Garda O’Connor had a conversation with Mr. and Mrs. Gray who confirmed that Mr. O’Donoghue was then residing with them in their family home.
4. The enquiry from Garda Martin Walsh was recorded in a book called an “Occurrence Book” which was maintained at the Garda Divisional Headquarters at Listowel.
Garda Daniel O’Connor recorded the result of his enquiries about James O’Donoghue by way of a written report which was transmitted to a Garda officer called a Collator, who was based in Tralee Garda Station. The report contained details of the convictions, former addresses and a description of James O’Donoghue and the opinion of Garda O’Connor, (a), that James O’Donoghue intended to remain “…in Ballybunion permanently as he claims he cannot go back to Dublin …” and, (b), that he would probably re-offend.
On 8th April, 1999 Garda John Keane, who was a Collator based at Tralee Garda Station, recorded the details contained in Garda O’Connor’s report in a typed document, (the Collator’s Report), which he sent to the Chief Superintendent in Tralee with a copy to the Superintendent in Listowel.
A document known as a “Collator’s Bulletin” was then issued and circulated to all of the Garda stations in the Kerry Division. This document contained all of the details relating to James O’Donoghue which had been included in Garda O’Connor’s earlier report and greater detail of the nature of and circumstances surrounding his earlier offences.
It was acknowledged by all of the relevant Garda witnesses who testified in these proceedings that the contents of, (i), the “Occurrence Book”, in the Garda Divisional Headquarters in Listowel, (ii), the Report submitted to the Collator by Garda O’Connor, (iii), the Collator’s Report and, (iv), the Collator’s Bulletin were all sensitive, confidential documents to which only members of An Garda Síochána had access.
It was also acknowledged by the Garda witnesses that members of An Garda Síochána were advised and were aware that the contents of those documents should not under any circumstances be disclosed to members of the public, members of the media or anyone other than authorised Garda officers.
5. On Sunday, 4th April 1999 Detective Garda O’Neill who was then the sole Detective Garda attached to Ballybunion Garda Station visited to the Gray family home at Marconi Avenue. He was accompanied by Detective Garda Queally who was a detective then attached to Listowel Garda Station.
Conflicting evidence was adduced in these proceedings by Francis Gray, (the third named plaintiff), and Det/Gardaí O’Neill and Queally as to what occurred during that visit. Francis Gray alleged that when he answered a knock on the door of the house Det/Garda O’Neill immediately assaulted him by standing on his foot and pushing him back into the house. He said that he was then told to leave the house whilst the Gardaí spoke to James O’Donoghue, (who was then located in the sitting room). Det/Gardaí O’Neill and Queally denied this allegation and gave a different account of what occurred.
6. Alan and Phyllis Gray had a conversation with James O’Donoghue between the 3rd April and the 6th April 1999 during which they told him that the Gardaí had spoken to them and that they wished him to return to Dublin. He agreed to do so. Consequently Mr. and Mrs. Gray drove him to Dublin on Tuesday, 6th April 1999. They returned to Ballybunion arriving at approximately 2.00 pm on Wednesday, 7th April 1999.
Immediately after their return they received a number of telephone calls from local journalists and other persons enquiring as to whether or not James O’Donoghue was resident in their home. Some journalists indicated to them that his presence there would be disclosed in the newspapers the following day.
The plaintiff’s daughter Lucy Gray who was then sixteen years received unpleasant and distressing telephone calls from her contemporaries and others. The calls related to the presence of James O’Donoghue within her home. Lucy Gray, whose evidence I accept without qualification, was affected adversely by these calls and by the fact that her friends appeared to abandon her as a result of the disclosures relating to James O’Donoghue.
The first and second named plaintiffs visited Ballybunion Garda Station and advised the Gardaí at the station that they had returned James O’Donoghue to Dublin.
Mrs. Phyllis Gray was very distressed at the prospect that local and other newspapers might disclose details of James O’Donoghue’s criminal history and the fact that he had been accommodated in the Gray family home. She became very distressed at the Garda Station and was interviewed by Sergeant McCarthy.
Sergeant McCarthy was sympathetic to her but advised her that since there was local media interest in James O’Donoghue’s presence in the area, there was a correspondingly high probability that details of his location would be published in the newspapers.
Sergeant McCarthy said that he got the impression from Mrs. Phyllis Gray that she wished to stay in Ballybunion and felt that she might be able to do so provided that details of the presence of James O’Donoghue within the Gray family home were not published in the local newspapers.
7. The North Kerry edition of The Kerryman newspaper dated Friday, April 9th, 1999 contained an article on its front page by journalist named Conor Keane. It was published and circulated on the streets of Ballybunion, (and elsewhere in Kerry), on the evening of the Wednesday, 7th April, 1999.
Mr Keane’s article was headed “Garda concern over sex pervert” and stated that the Gardaí in North Kerry were “uneasy about the presence in Ballybunion of a serial violent sex offender…who has taken up temporary residence in the resort …” The article continued:
“However, it is understood that he is expected to leave this weekend.
The Gardaí are not commenting in any way to the media about the case but the Kerryman understands that they only became aware of the man’s presence in Ballybunion as a result of routine Garda enquiries following the rape and sexual assault of two young girls in the Clondalkin area of Dublin.
The man has only recently been released from jail. Garda enquiries into the whereabouts of known sex offenders following the Clondalkin sex attacks resulted in the discovery that the repeat offender was staying in Ballybunion.”
Conor Keane, the journalist who wrote the article, testified in these proceedings. He stated that he wrote the article because he received an anonymous telephone call from a woman who claimed to be a concerned parent in Ballybunion. She told him that a serious sex offender was living in the town. Mr Keane said that he had verified the caller’s information by speaking to a number of people.
When asked if he had spoken to a member or members of An Garda Síochána he refused to answer. He stated that he could not do so because his answer might identify the source or sources of his information. He claimed that he had a duty to protect his sources at all times.
When asked if he could exclude members of the Gardaí as a source or sources of his verification he refused to do so, again claiming that he had an obligation not to disclose the source of his information.
When asked if the words which he had published stating that “Gardaí are not commenting in any way about this case” were true, he answered “Yes”.
When asked “did they ever comment to you?” He replied “I can’t answer that question”.
8. On the 8th and 9th of April, 1999 and on successive days thereafter, a series of articles appeared in local and national newspapers. Many were published under such headlines as “Get rapist out of town” and “Resident rapist feared by families”.
The plaintiff and members of their family were confronted by journalists and photographers who converged upon their home and subjected them to very unpleasant and intrusive behaviour. Newspaper accounts persisted continuously between the 9th and 16th April.
By the 12th April 1999 the plaintiffs and their family had returned to Dublin permanently.
9. For six months the plaintiffs and their family were provided with overnight “bed and breakfast” accommodation in Dublin. In consequence the plaintiffs and their five children were required to sleep in a single bedroom each night and to leave the premises no later than 10.00 am the following morning. They were permitted to return to the premises after 5.00 pm. During the intervening period they were confined to sit in their family motorcar or to walk within Dublin city. During daytime the family survived on “takeaway” meals and “fast food” restaurant facilities.
They were then accommodated for a further six months in a two-roomed apartment in North King Street. Subsequently they were provided with a Local Authority house in North Circular Road where they are now resident.
10. Phyllis Gray suffered from severe stress arising out of the events which occurred in Ballybunion in March and April of 1999. As a consequence she suffered a moderate to severe depressive syndrome, experienced intermittent suicidal ideation and made one suicide attempt as a consequence.
After initial treatment in the psychiatric section of the Mater Hospital in Dublin she was treated with anti-depressant medication. She suffered on-going symptoms for the time including a relapse which required further medication and her treating psychiatrist was of the view that “a significant emotional scar will remain which will render her vulnerable to further depressive episodes.”
She was diagnosed as suffering from Post Traumatic Stress which had reduced in intensity and had finally resolved by early 2006. She has now successfully discontinued to her medication and can be considered to have recovered from the effects of the events which occurred in Ballybunion in 1999.
11. Superintendent Michael Maher, who is the Superintendent District Officer
in Listowel, was the appropriate officer to whom enquiries from the media ought to have been directed in April 1999. Testifying in these proceedings he said that no journalist or other member of the media had contacted him in relation to the presence of James O’Donoghue in Ballybunion in 1999. He had not disclosed to any member of the media or to any unauthorised person that James O’Donoghue was resident in Ballybunion at the relevant time. He also said that he was not aware that any other member of the Garda Síochána in the Kerry area had made such a disclosure and he did not believe that they had done so.
A member of the Gardaí who disclosed to an unauthorised person information which came into his or her knowledge in the course of Garda duty, (and which was not otherwise available to members of the public), would be acting in breach of the provisions of the Garda Síochána (Discipline) Regulations 1989.
He stated that it was necessary for the Gardaí to take “sensible precautions” when they became aware that potentially dangerous sex offenders were resident in particular areas. These precautions included surveillance of the offender and constant monitoring of his behaviour and whereabouts.
He stated that it would not be appropriate for Gardaí to notify neighbouring residents of the location of convicted sex offenders. He said that this might give rise to the risk of hysteria in the area concerned and lead to “vigilantism”. Disclosure to neighbours might result in “… a bigger crime on your hands than what you were trying to prevent…”
Gardaí were concerned to ensure the safety, (a), of the offender and, (b), of the other occupants of the house where the offender was resident.
ASSAULT AND BATTERY
It is claimed that on the 4th April, 1999 Detective Gardaí O’Neill and Queally unlawfully entered the plaintiffs’ home in Marconi Avenue and assaulted and battered Francis Gray within the house. It is claimed that they also threatened James O’Donoghue with physical violence if he did not leave Ballybunion. I found the evidence of the three witnesses who were relevant to this occurrence to be unsatisfactory and inconclusive.
I accept the evidence of Mrs. Phyllis Gray that she was present in the family home and was in an upstairs bedroom when the Gardaí arrived. However she stated that she did not witness the events which were, (a), complained of by Francis Gray and, (b), denied by the two Gardaí.
Having regard to the overall quality of the evidence adduced in relation to this occurrence I am not satisfied that the plaintiffs have discharged the onus which lies upon them of proving on the evidence and on the balance of probabilities that Francis Gray was subjected to an assault or battery in his family home on the 4th April, 1999.
NEGLIGENCE
In Ward v. McMaster [1988] I.R. 337 the Supreme Court (McCarthy J.), identified the duty of care owed by public bodies to ordinary members of the public. The Court cited, (at p.347), with approval the dicta of Wilberforce L. J. in Anns v. Merton London borough [1978] AC 728, (at p 751 and 752), in which a “two stage test” was applied by the Court in relation to claims for damages for such alleged negligence. McCarthy. J. observed, (at p.349) that:
“I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”
In Hanahoe v. Hussey [1998] 3 IR 69 the High Court (Kinlen J.) considered a claim that the publicity attendant upon the search of a solicitors’ offices was procured by means of a member or members of An Garda Síochána disclosing or “leaking” sensitive information to journalists, (including the fact that a warrant had been issued permitting the Gardaí to conduct a search of the plaintiffs’ premises).
The Court noted (at p. 105) that the State respondent in that case had, in their submissions, acknowledged that “disclosure emanating from careless conduct on the part of one or more Gardaí would amount to negligence under the principles set out in Ward v. McMaster [1988] I.R. 337” and endorsed that view. Finding that the plaintiffs had suffered damage by the result of the negligence of the Gardaí the Court awarded the plaintiffs damages.
The proximate relationship between the State and those of its citizens who may be affected by the by the State’s procurement of sensitive and confidential information is undeniable. That relationship can give rise to a duty of care owed by the State to persons who may be adversely affected by the disclosure or publication of such information. The negligent disclosure of sensitive and confidential information by Gardaí to journalists or other members of the media will give rise to a cause of action for damages for negligence if the disclosure results in reasonably foreseeable loss, damage or injury to a person affected by the disclosure.
In the instant case the following facts have been proved by way of evidence:
1. that the journalist Conor Keane received an anonymous telephone call from a woman who provided him with limited information indicating that a sex offender was living in Ballybunion.
2. that Mr. Keane spoke to certain persons for the purpose of verifying the information which he had received.
3. that Mr. Keane received the following detailed information from the persons to whom he spoke:
(a) confirmation that James O’Donoghue was resident in Ballybunion,
(b) information that the Gardaí “only became aware of … (James O’Donoghue’s).. presence in Ballybunion as a result of routine Garda enquires following the rape and sexual assault of two young girls in the Clondalkin area of Dublin”
(c) information that James O’Donoghue “has only recently been released from jail” and
(d) information that James O’Donoghue was “expected to leave this weekend”,
4. this was the information which formed the basis of the article which Conor Keane wrote and which was published in the North Kerry edition of The Kerryman dated Friday April 9th ,1999.
5. that the only written record of Garda enquiries undertaken arising out of a rape in Dublin in March 1999 was an entry in the “Occurrence Book” maintained in the Garda Divisional Headquarters at Listowel, in Co. Kerry and dated the 25th March, 1999.
6. that the other details concerning the criminal and other history associated with James O’Donoghue were recorded in, (i), Gda O’Connor’s Report, (ii), the “Collator’s Report”, and,(iii), the “Collator’s Bulletin”
7. that only authorised members of An Garda Síochána had access to the documents identified in 4 and 5 above and
8. that the enquiry from Garda Martin Walsh on 25th March, 1999 related to the investigation of a sexual offence in Dublin in Clondalkin on the 16th March, 1999 (confirmed by Garda Daniel O’Connor in evidence).
It has been suggested on behalf of the defendants that a local hotelier, (Mr. Quilter), or local children attending a “roller-disco” within Mr. Quilter’s premises or a prominent local County Councillor might have disclosed the relevant information to Mr. Keane. I reject that suggestion inter alia, because, at the time when Mr. Keane’s article was published, the details contained within Mr. Keane’s article were not known to Mr. Quilter or to the children who attended at his “roller-disco” or to the relevant County Councillor.
The precise information which was published in Mr. Keane’s article (and in particular the reference to “routine Garda inquiries following the rape… in the Clondalkin area of Dublin…”) was information which was only available and accessible to members of An Garda Síochána.
Mr. Keane, in evidence, refused to exclude members of An Garda Síochána as the source of the information. He sought to invoke a questionable privilege in support of his refusal.
Having regard to the facts which I have found to be proved and to Mr Keane’s refusal to exclude members of An Garda Síochána as the source of his information, I am satisfied on the evidence and on the balance of probabilities that the information and verification which gave rise to the publication of Mr. Keane’s article came from a member or members of An Garda Síochána.
This Court is acutely conscious of the dilemma facing the officers of An Garda Síochána when circumstances arise such as those which arose in this case. The presence of a dangerous convicted rapist within any community will be a genuine and legitimate source of concern for local members of An Garda Síochána. When that occurs it will be reasonable for Gardaí to take appropriate steps to ensure that such persons do not pose a risk to the public and in particular to children.
Mr. Maher S.C. on behalf of the State argued that there may be a duty upon Gardaí, in such circumstances, to warn potential victims and their family members of the presence of an offender in their neighbourhood. In support of his contention he relied upon a decision of the Ontario Court, (General Division), in the case of Doe v. The Board of Commissioners of Police for the Municipality of Metropolitan Toronto 160. D.L.R. (4th), 1998 at 697.
In that case a number of women were used as bait without their knowledge or consent in order to attract a predator whose specific identity was unknown to the police at the time but whose general identity was known. The police made the decision not to warn the intended victims. The reason for the decision was that their investigation would have been jeopardised.
The Court found that, having decided not to warn the plaintiff, the police had taken no steps to protect her although they knew her to be at risk of an almost certain attack. The Court held that the police had failed to take reasonable care for the plaintiff and had denied her the opportunity to take steps to protect herself from attack. For that reason the Court held that the police were liable to the plaintiff in damages.
The facts of the instant case are quite different. It was evident, from the evidence of Superintendent Maher, that, on the particular facts of this case, it would have been inappropriate for Gardaí to warn neighbouring residents of the presence of James O’Donoghue in Ballybunion. He stated that such a course could have resulted in the commission of serious criminal offences and should have been avoided.
He stated that, as a general principle, it is inappropriate for Gardaí to disclose the location of convicted sex offenders to journalists or to other organs of the media.
He identified what he called “reasonable precautions” which should be undertaken by the Garda Síochána in order to minimise the risk to potential victims of the proximity of offenders like James O’Donoghue. He spoke of the need for Gardaí, in such circumstances, to acquaint themselves with the offender and to place him under continuous surveillance, to monitor his movements and to make him aware of their presence.
He was at pains to stress the need for prompt and sensitive handling of information of the type which came into the possession of An Garda Síochána in relation to the presence of James O’Donoghue in Ballybunion.
I accept the evidence of Superintendent Maher on this issue. He identified a careful, sensible and appropriate policy adopted by senior officers in An Garda Síochána before 1999 which was to be applied when convicted sex offenders became resident in particular areas.
That policy could, (and should), have been successfully applied to the presence of James O’Donoghue in Ballybunion in 1999. Local Gardaí, at the relevant time, knew, or could, upon enquiry have discovered, that James O’Donoghue would be resident in the Gray family home for a very short period, (estimated to be no more than a few weeks). It was a short-term problem which should have been resolved by the application of the correct and prescribed Garda policies.
Although some steps were taken in relation to the matter which were consistent with stated Garda policy, other steps taken by a member or members of the Garda Síochána were in clear breach of Garda policy and of the provisions of the Garda Síochána, (Discipline), Regulations 1989.
Those steps were also in breach of the duty of care which the State owed to the plaintiffs not to unnecessarily expose the plaintiffs to the risk of foreseeable damage and injury resulting from the negligent disclosure of confidential information procured by and within the possession of the State.
The plaintiffs have suffered distress, upset and inconvenience as a result of the State’s negligence and the second named plaintiff, Mrs Phyllis Gray has suffered personal injury as a consequence.
It follows that the plaintiffs are entitled to recover damages from the State.
THE RIGHT TO PRIVACY
It is also claimed that since the State, through the agency of members of the Gardaí, violated the plaintiffs’ constitutionally protected right to privacy and to the peaceful enjoyment of their home, by unlawfully disclosing confidential and sensitive information to members of the media. This, it is contended, caused the plaintiffs to be subjected to abuse, harassment and intimidation of such a character that they were obliged to leave their home in Ballybunion permanently.
In Kennedy and Ors v. Ireland and the Attorney General (1987) 1 I.R. 587 the High Court, (Hamilton P.), having adopted an earlier definition of the right to privacy as “the right to be let alone” continued (at p. 592);
“the right to privacy is not an issue, the issue is the extent of that right or the extent of the right to be let alone. Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen.… It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and it is subject to the requirements of public order and morality.”
That case concerned deliberate, conscious and unjustifiable electronic eavesdropping by agents of the State upon private telephone lines used by the plaintiffs. The Court found that the plaintiffs’ rights had been violated and awarded damages.
The violation of the plaintiffs’ rights in Kennedy was clear. It was caused by deliberate and reprehensible intrusions, by agents of the State, into the private lives and conversations of the plaintiffs without justification. The intrusions included electronic interference by servants of the State who listened to the plaintiffs’ conversations, recorded them, transcribed them and made transcripts of the conversation available to other persons.
The facts of the instant case are different. It is true that the peaceful enjoyment by the plaintiffs of their home was disturbed and their privacy was invaded. It is true that they suffered harassment and intimidation and distress and inconvenience as a result of the wrongful disclosure by members of the Gardaí of confidential information about a guest within their home.
However, it is contended on behalf of the State that the plaintiffs’ right to privacy in this case was necessarily restricted by the need to vindicate the constitutional rights of others and by the requirements of the common good.
In R v. Chief Constable of the North Wales Police and Others [1999] 1 Q.B. 396, the Court of Appeal in England considered an appeal by a married couple who had been released from prison having served long sentences for the commission of sexual offences against children.
By reason of adverse publicity in the local press and angry response from neighbours they had been moved from one location to another on a number of occasions until they finally obtained accommodation in a caravan in an area where they intend to remain. A police officer who had filed a report indicating that the applicants posed a threat to large numbers of children (who frequented the caravan site during holiday periods), met with the applicants and tried to persuade them to move on.
The police request was made pursuant to advice contained within a police policy document intended to address the risk of re-offending by convicted paedophiles. The document indicated that information acquired by the police should be released on a “need to know” basis to protect potential victims. The police officer showed the owner of the caravan site material from local press relating to the applicants’ conviction and they were told by the site owner to leave the site.
They sought judicial review by way of declarations that, (a), the policy and, (b), the decision to inform the caravan owner of their convictions, were unlawful.
The Court of Appeal held inter alia, that although the convictions of the applicants had been in the public domain, the police could only publish the information if it was in the public interest to do so and that to disclose the identity of paedophiles to members of the public was a highly sensitive decision which should only be taken when there was a pressing need to do so.
However, it was held that since the police had not been motivated by any improper considerations and since it was impossible to categorise their decision as irrational, (a), the policy of the police and, (b), the decision were not unlawful.
In the instant case it has been established by way of evidence and on the balance of probabilities a member or members of An Garda Síochána negligently disclosed confidential and sensitive information to an organ of the media arising out of a request from a journalist for verification of information which was already in the possession of the journalist.
On the evidence it is unlikely that the information would have been published without the verification which was provided. In the light of the evidence of Superintendent Maher I am satisfied also that the disclosure of the information to Conor Keane cannot be excused by reason of any public policy consideration such as the need to protect the constitutional rights of others or the interests of the common good.
It follows that I am satisfied that the unlawful and negligent disclosure by a member or members of An Garda Síochána of the relevant information to Mr. Keane comprised a violation of the constitutionally protected right enjoyed by each of the plaintiffs to privacy and the peaceful enjoyment of their home.
It has been contended on behalf of the defendants that the State is not vicariously liable for the negligent or unlawful acts or omissions of members of An Garda Síochána in circumstances such as those which have given rise to these proceedings. I do not accept that contention.
The liability of the State for the tortious acts and omissions of its servants and agents is well settled. Liability can be avoided where a servant or agent is acting outside the scope of his or her employment. However, the civil wrong which has been established in this case was a wrong committed by a servant and agent of the State. The wrong was the unlawful disclosure of confidential and sensitive information procured by the State. The duty to keep that information confidential rested with the State.
The State is vicariously liable in such circumstances for the negligence of its servants and agents and for any breach by its servants and agents of the constitutionally protected rights of its citizens arising out of that negligence.
DAMAGES
The plaintiffs suffered distress, upset and inconvenience as a result of the unlawful acts of the servants and agents of the State.
The most severe upset, distress and inconvenience to which the first named plaintiff, Alan Gray was subjected occurred during the first six months after his return from Kerry to Dublin. For a subsequent six months he was similarly inconvenienced and distressed. During that time and for sometime thereafter he was affected by his wife’s illness arising out of the psychological and psychiatric damage which she suffered as a result of the events which are the subject of these proceedings. With the passage of time, the stress, anxiety, distress and inconvenience suffered by the first named plaintiff reduced and ultimately resolved.
Accordingly, the first named plaintiff Alan Gray is entitled to the sum of €15,000.00 to compensate him for the upset, distress, inconvenience and disruption of his life which resulted from the unlawful actions of the State in March and April of 1999.
I am satisfied that the third named plaintiff Francis Gray suffered a certain amount of inconvenience and upset as a result of the events of April of 1999. He sustained most disruption and inconvenience during the six months after his return from Kerry to Dublin. He is entitled to recover the sum of €5,000.00 to compensate him for that inconvenience, upset and disruption.
The second named plaintiff Phyllis Gray was the person who suffered most as a result of these events.
She suffered a moderate to severe depressive syndrome, had intermittent suicidal ideation and made a suicide attempt as a consequence. She required treatment, (including anti-depressant medication), in the psychiatric section of the Mater Hospital in Dublin. She had ongoing symptoms including a relapse which required further medication. She was rendered vulnerable to further depressive episodes arising out of Post Traumatic Stress which did not finally resolve until early 2006.
Mrs. Phyllis Gray was the “driving force” behind the decision of the Gray family to move to Kerry in 1995. I accept without qualification her evidence that she was very reluctant to permit James O’Donoghue to reside in the family home and agreed to do so only for a very short period of time. I accept also that it was her intention that she and her family should remain in Kerry permanently and that her husband had agreed to give effect to that intention.
I am satisfied on the evidence and on the balance of probabilities that by reason of what occurred in March and April of 1999 the hopes and expectations of Mrs. Phyllis Gray that she and her family could live a peaceful life in Kerry were frustrated and she was forced to return to a life which she did not wish to lead in Dublin.
On the evidence she has overcome very substantial obstacles and has adapted to her changed circumstances. However, she suffered very considerably in order to do so and overcame serious personal injuries and in particular Post Traumatic Stress and psychological injury of a severe nature.
By virtue of her own resolve she has successfully overcome her injuries. They reduced in intensity and have finally resolved over a period of more than six years.
In the light of the serious injuries sustained by Mrs. Gray and of her ongoing symptoms and having regard to the substantial inconvenience, disruption and upset which she has endured, I am satisfied that she is entitled to recover damages in the amount of €50,000.00 from the defendants.
Herrity v Associated Newspapers (Ireland) Ltd
[2008] I.E.H.C. 249 Dunne J.
JUDGMENT delivered by Ms. Justice Dunne on the 18th day of July 2008
The plaintiff in this case seeks damages for wrongful invasion and breaches by the defendant of the rights enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. Other relief arising from the same circumstances is also claimed.
The plaintiff is a married woman who was residing in Lucan in 2003. A number of articles appeared in a newspapers owned by the defendant over a three week period concerning the plaintiff. The first of the articles appeared in the edition of the 2nd November, 2003, under the headline “Husband accuses priest of dirty dealing … with his wife”. The second article appeared on the 9th November, 2003, under the headline “Wife’s nights on the town with her OTHER ‘wild’ priest”. The third article appeared on the 16th of November, 2003, under the headline “Phone lover priest quits”. A fourth article was subsequently published in 2004. It is not the subject of complaint in the pleadings herein although reference was made to it during the course of the hearing.
The articles concerned the relationship between the plaintiff and Fr. Heber McMahon, then a parish priest in Brackenstown, Swords, Co. Dublin. The first of the articles set out an account of the plaintiff’s background and a history of the marriage of the plaintiff and her husband. It described how the plaintiff and her husband came to develop a friendship with Fr. McMahon over the years. It also set out some detail as to the breakdown of the marriage between the plaintiff and the plaintiff s husband. The subheading for this article was as follows:-
“The extraordinary tapes which revealed to parishioner that ‘all priest’ star was a little too close for comfort”.
This article was accompanied by three photographs of the plaintiff, one in which she is seen with her husband and another in which she is seen with Fr. Heber McMahon. There is also a photograph of Fr. McMahon. The article was also accompanied by a transcript of a telephone conversation that took place between the plaintiff and Fr. McMahon. That transcript was introduced as follows:-
“Michelle Herrity and Fr. Heber McMahon shared intimate and frequent telephone conversations which were intercepted by a private eye working for her husband, Liam. In the first extract, the couple have a lover’s tiff, ironically sparked because the unsuspecting pair cannot work out why the phone line is bad. Bizarrely, both frequently refer to themselves in the third person as ‘your wife’ and ‘your husband’.”
The main body of the article referred to the extract from the transcript as follows:-
“Now Michelle’s furious husband has reported Fr. McMahon to the Diocese after commissioning a private eye to spy on the couple and tape their intimate telephone conversations. For weeks the private eye tailed Fr. McMahon and Michelle and caught them going on holiday to Italy together and having dinner in a plush restaurant. But the clinching evidence that their relationship was far closer than appropriate for priest and parishioner came when the investigator taped a series of conversations between the two. The extraordinary tapes which have been listened to by Ireland on Sunday, contain lurid conversations between the pair in which they talk with baby voices and call each other ‘husband’ and ‘wife’. In all, there are thirteen hours of cassettes which captured the nightly chats between the pair in which they regularly spoke of their love for each other.”
The second article referred to was published on the 9th November, 2003, and contained transcripts of parts of two conversations that the plaintiff had with a Fr. Eddie Cleary and three telephone calls she had with Fr. McMahon and a transcript of part of a telephone conversation with a female friend. The main body of the article contained references to the transcripts which were published on that date as follows:-
“Mrs. Herrity’s socialising and questionable friendship with thirty four year old Fr. Cleary is revealed in thirteen hours worth of detailed phone conversations which were taped by a private detective hired by her suspicious husband, Liam. Although the bulk of the conversations are between Mrs. Herrity and Fr. McMahon, there are references made to Fr. Cleary and chats involving the young priest and Mrs. Herrity. In one conversation, Mrs. Herrity tells a female friend how she spent more than four hours one night drinking in Bewleys Cafe on Grafton St. with a priest, who was originally from Co. Tipperary. She said: ‘I sat there and I didn’t go home until about 1.00 in the morning. I sat there and I had three glasses of wine and had a ball with him, now I really did’. Mrs. Herrity also told her shocked friend that the easy going cleric knocked back the vodka. She said: ‘I mean, he drinks vodka, he is a good drinker, you know. But I went up there and here is me thinking I am going to tell him my problems and he starts telling me all his problems. Oh I tell you, the laugh I had’.”
The final article to which reference is made in the pleadings was that headed “Phone lover priest quits”. That article did not publish any further transcripts of the plaintiff’s telephone conversations but made the following comment:-
“Mr. Herrity, who is estranged from his wife, had become so suspicious of the relationship that he hired a private detective to monitor the couple’s activities and to tape their telephone conversation. What he discovered was that Fr. McMahon and Michelle Herrity, a petite blonde, had enjoyed romantic dinners, beach strolls and even a holiday together in Italy. However, their intimate conversations provided a greater insight into just how close the couple had become. They affectionately referred to each other as ‘husband’ and ‘wife’ and repeatedly said to one another, ‘I love you’.”
The evidence of the plaintiff.
The plaintiff in the course of her evidence described her family background, education and her training to become a hairdresser. She married Liam Herrity at the age of twenty two, having known him since she was fifteen to sixteen. Originally they lived with his father in his father’s home and subsequently bought their first house in Clondalkin. They met Fr. McMahon there through a residents committee and became friendly with him. Her husband was active in local affairs. They subsequently moved to Lucan.
There were no children of the marriage. The plaintiff described her husband’s attitude to having children – apparently, he did not want to have children unless they were adopted.
The plaintiff then went on to outline her concerns as to her husband’s friendship with a young man who was employed by her husband when he was seventeen. This young man accompanied Mr. Herrity on holidays and on other activities such as golf and horse riding. The plaintiff was concerned with the amount of time her husband spent with this young man and she also had some other concerns about their relationship. She confronted him at this time and asked her husband to leave the house. Court proceedings followed and on the 8th August, 2003, a Civil Bill was issued.
The plaintiff indicated that at that point in time the relationship with Fr. McMahon was one of friendship only. Following the departure of the plaintiff’s husband from the family home her relationship with Fr. McMahon became more intimate and developed into a sexual relationship.
She gave evidence to the effect that she was the subscriber to the telephone which was in her name only. She did not give anyone permission to interfere with her telephone line. The first intimation that the plaintiff had, that her phone conversations had been taped came from a telephone call made by her husband to the plaintiff’s sister-in-law. He stated that he was going to have transcripts of phone conversations published, if she did not sign over the family home to him for a sum of €20,000. She did not believe that he had any transcripts. Subsequently, the day before the first article was published, she received a phone on her mobile phone at work. She was told that a story was about to be published about her relationship with Fr. McMahon and she was asked for a comment. She described how she dropped the phone and became hysterical. Because of her reaction to the phone call, she lost her job. She was unable to drive herself home and her brother had to collect her. She described her reaction to the publication of the article the following day and commented that the article was based on her husband’s account of the marriage breakdown. She said that it was untrue to suggest that the marriage broke down because of her involvement with Fr. McMahon and she was critical of the fact that the defendant’s newspaper made no effort to find out her side of the story apart from the brief phone call at her place of work. She outlined her reaction to the subsequent articles, she accepted that the transcript as set out were accurate but commented that they were transcripts of private conversations which were meant to be private.
She explained that she is now living with Fr. McMahon who has applied to be laicised. She said that the publication of the material knocked her confidence completely. She said she suffered from nightmares and panic attacks subsequently. In the course of cross examination she was adamant that her relationship with Fr. McMahon developed after her marriage was over and she conceded that her marriage was over before her husband moved out of the family home. She accepted that the conversations which were recorded took place in 2003 by which time she was involved with Fr. McMahon. She accepted that insofar as the newspaper article published on the 2nd November, 2003, was concerned that it was true to say that she was in a relationship with a man who was a priest.
The evidence of Fr. Heber McMahon.
Fr. McMahon in the course of his evidence said that he was still a priest in the Roma Catholic Church. He has resigned all his duties and is waiting for laicisation. He described how he came to know both of the Herrity’s. Subsequently he was transferred to Brackenstown, in Swords and the plaintiff and her husband continued as friends. Subsequently he discovered that the marriage of the plaintiff and her husband was unhappy. He suggested counselling and was anxious to help. He accepted that his concern for her ultimately led him to become unprofessional in his relationship with her. However, he stated that this post dated the break up of the marriage.
Finally he described how he became aware of the imminent publication of the first article. He was stopped at traffic lights in town when a person who identified himself as a journalist from “Ireland on Sunday” tapped on his window. There was a brief conversation during which Fr. McMahon confirmed that Mr. Herrity had made a complaint to his archbishop. There was no further contact beyond that. He then described the adverse effect of the publication on the plaintiff. He reiterated that the break up of the marriage pre-dated his relationship with the plaintiff.
In cross examination, he accepted that a complaint had been made by Mr. Herrity to the Church authorities in 2002. By November, 2003, he was engaged in an emotional and sexual relationship with the plaintiff. At that time he was still a serving parish priest and was reasonably well known. He accepted that he was in breach of his ethical code and that people would be disappointed by a priest not living up to his vows. He accepted that people would have an interest in the story. He accepted that the discussion he had with the journalist on the Saturday prior to the publication of the article was accurately reported, but he described it as a discussion and not an interview. He tendered his resignation after the article appeared.
Evidence of Raymond Casey
Mr. Casey gave evidence that he was a former member of the Gardai. He is now employed in the security business and in that capacity he was asked to visit the former family home of the plaintiff and her husband. He found evidence that a device had been placed at some stage at the point at which telephone lines entered the house. He noted that the connector attached to the phone wire could have been used to connect to a tape recorder. His conclusion was that it was clear that a device was connected to the phone line.
Evidence of Patrick Ryan
The plaintiff’s solicitor Patrick Ryan gave short evidence as to the activity of a photographer in the precincts of the court building. He saw the photographer on a number of occasions and subsequently saw the same photographer with the defendant’s team.
No evidence was tendered on behalf of the defendant.
Findings on the evidence
So far as the evidence in this case is concerned, I accept that the relationship between the plaintiff, her husband and Fr. McMahon was at the outset one of mutual friendship. Over a period of time, difficulties arose in the marriage of the plaintiff and her husband. An attempt was made to deal with these difficulties through counselling, on the recommendation of Fr. McMahon, but to no avail. It seems to me from the evidence that I heard, that the plaintiff at this time had legitimate concerns as to the nature of the relationship between her husband and the young man who was his employee and with whom he now lives.
I accept that the relationship between Fr. McMahon and the plaintiff became intimate after the marriage of the plaintiff and her husband had come to an end, although I am somewhat unclear as to whether this was before or after Mr. Herrity left the family home. I am also unclear as to precisely when Mr. Herrity did in fact leave the family home. It is clear the Circuit Court proceedings commenced in August, 2003, but as I have indicated it is not clear whether Mr. Herrity had left the family home prior to that date or not.
I also accept and there can be no doubt about this that the telephone line of the plaintiff was interfered with and that a recording device had been attached to the telephone lines. Her telephone calls were recorded without her permission. There can also be no doubt that this was done at the instigation of Mr. Herrity, apparently by a private detective employed by Mr. Herrity.
The newspaper articles of which complaint is made in these proceedings were clearly facilitated by Mr. Herrity in that he provided the transcripts and a number of photographs. The newspaper articles presented a one sided account of the break up of the marriage. It could be said that the evidence I have heard is also one-sided given that no evidence was led by the defendant but nonetheless, I am satisfied that the account given in the newspaper article was significantly less than the full story.
I accept that the plaintiff was deeply upset as a result of the publication of these articles and particularly, the publication of her private telephone conversations.
As mentioned at the outset, the plaintiff in these proceedings claims damages for breaches by the defendant of the right to privacy enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. In addition she claims damages for the wrongful infliction of mental distress, for beach of confidence, for breach of statutory duty and for conspiracy. The core of the complaints made by the plaintiff herein is an alleged breach of the provisions of s. 98 of the Postal and Telecommunications Services Act 1983, which provides:-
“(1) A person who
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence. …”
Section 98(5) of the Postal and Telecommunications Act 1983 as amended by s. 13(3) of the Interception of Postal Packets and Telecommunications Messages Act 1993, provides as follows:-
“In this section ‘intercept’ means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly.”
The amended defence filed herein included a plea that if, which was denied, the articles complained of included content that was acknowledged in the articles to include extracts from recordings made of private telephone conversations held by the plaintiff with third a party, it was denied that such conversations were held by the plaintiff on her private telephone line as alleged. It was also further denied that the material had been obtained by a third party by means of unlawful surveillance and recording of private conversations held by the plaintiff on her telephone line. Notwithstanding these pleas, I am satisfied that there is no doubt whatsoever that the articles complained of contained material which was obtained by means of the recording of telephone conversations of the plaintiff with third parties without her knowledge or permission. To that extent it appears that there has been a breach of s. 98 of the Postal and Telecommunications Act 1983.
The Issues
The key point in this case made by the plaintiff is that the publication of the transcripts amounts to a breach of the right to privacy enjoyed by the plaintiff. It was conceded that the right to privacy is not an unqualified right and that there may be exceptional circumstances in which it is possible to justify the breach of privacy of an individual. However, it was submitted that the defendant could not attempt to claim that their actions were lawful in circumstances where the material published was obtained as a result of the commission of a serious criminal offence.
In the defence filed herein, the defendant pleaded that it acted in accordance with the right to freedom of expression, in particular in publishing material in the public interest. However, it was submitted that the articles in this case went much further than could be justified by reference to any public interest. In replies to particulars, the public interest identified by the defendant, inter alia, was that served by exposing “the conduct of members of the clergy, who hold positions of public trust”. However, it was submitted on behalf of the plaintiff that this did not justify details relating to her private life being publicised and that this went far beyond any need to publicise the conduct of Fr. McMahon. In support of this contention, particular reliance was placed on the second article published by the defendant on the 9th November, 2003, which contained transcripts of further telephone conversations of the plaintiff. In those conversations reference was made to Fr. Eddie Cleary. It was submitted that there was no justification whatsoever for publishing that material. It was submitted that the defendant did not set out to inform their reader that Fr. McMahon was having an affair with a married woman but rather they set out to use the material given by her husband to violate her privacy.
The response of the defendant to the arguments of the plaintiff in respect of the plaintiff’s claim for damages for breach of the right to privacy is to say that the authorities do not support the contention that there is a cause of action for damages for breach of privacy against a defendant other than the State. In other words damages cannot be recovered for breach of privacy against a private person or entity. Reference was made to the decision in the leading case of Kennedy v. Ireland [1987] 1 I.R. 587. It was submitted that that decision appears to refer only to State liability. It was pointed out that there is no decided case in this jurisdiction where damages have been given for breach of a right to privacy against a private person or entity. It was further pointed out that the only cases within this jurisdiction that have gone to full trial and in which the right to claim damages for breach of privacy have been recognised have been claims against the State, namely, Kennedy referred to above, Hanahoe v. Hussey [1998] 3 IR 69 and Gray v. Minister for Justice [2007] IEHC 52.
It was accepted that there have been decisions given in this jurisdiction at an interlocutory stage which have assumed that there is a cause of action in privacy against a private individual, namely, X. v. Flynn (Unreported, Costello J. 19th May, 1994), M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
Reference was also made to the English authority in the case of Wainright v. Home Office [2004] 2 AC 406, in which it has been specifically decided that there is no general common law tort of invasion of privacy.
The second point made on behalf of the defendant was that if there is a right to claim damages for breach of privacy against private persons and entities then following the reasoning of the Supreme Court in Kennedy, it can be concluded that the publication of transcripts of telephone conversations is a prima facie breach of the right to privacy if the publication was deliberate, conscious and unjustified. Therefore the question to be considered in this case is whether the prima facie breach was “unjustified”. The first point relied on in this regard is that the defendant in this case, a newspaper, was exercising its right to freedom of expression. Such a consideration was absent from the Kennedy case. It was pointed out that there is a conflict between the right of privacy on the one hand and the freedom of expression on the other hand. Reference was made in that context to the decision in Supreme Court in the case of Mahon v. Post Publications Limited [2007] 2 ILRM 1. Thus counsel argued that the defendant was entitled to publish the material concerned not simply by relying on the public interest but also having regard to the defendant’s right to freedom of expression. In other words it is not necessary to justify the publication by reference to the public interest. It was pointed out that in this regard there is no conflict between the Constitution and the European Convention on Human Rights. Although the 2003 Act, was not in force at the time of publication, it was suggested that the approach taken in the case of Mahon v. Post Publications Limited should be adopted in this case. Freedom of expression is not dependant upon being able to establish that there is any public interest in a story.
The second point made on behalf of the defendant is that the central allegation in the articles complained of is true. There is no challenge to the accuracy of the material published. It was submitted that this was a decisive factor in an analogous case namely, Maguire v. Drury [1995] 1 I.L.R.M. 108.
The next point relied on by the defendant was the public interest. It was pointed out that Fr. McMahon was a Catholic priest and as such required to be celibate. It was also submitted that a Catholic priest, particularly one who serves as a parish priest, is a public figure. It was argued that if such a priest is not celibate or if his private behaviour is not in accordance with the norms advocated by the Church, then that is a matter of public interest. Reliance was placed on the decision of the Court of Appeal in the United Kingdom in the case of A. v. B. Plc [2003] QB 195.
The final matter relied on by the defendant was the fact that the information published came from the plaintiffs husband and it was submitted that his rights to freedom of expression had to taken into consideration. In support of this contention reliance was placed on the decision in A. v. B. Plc referred to above and on a passage at para. I l(xi) where it was stated:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
On the basis of that decision it was contended that if it was relevant in that case to consider that one of the parties to a non-marital relationship wished to give information to the newspapers it was all the more so a consideration where the information came from a party to a marriage.
Relying on those considerations, it was submitted that the publication was justified.
The Right to Privacy
The right to privacy is an unenumerated right under the Constitution which has its genesis in a short series of cases commencing with the decision in McGee v. Attorney General [1974] IR 284. That well known case concerned the provisions of s. 17 of the Criminal Law (Amendment) Act 1935, which restricted the availability of contraceptives. Section 17(3) was struck down as being inconsistent with the Constitution as it was an unjustified invasion of the plaintiffs personal right to privacy in her marital affairs. At p. 313 of his judgment, Walsh J. commented:-
“In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.”
Henchy J. at p. 308 in the same judgment said:-
“In my opinion, s. 17 of the Act of 1935 violates the guarantee in
s. 3(1) of Article 40 by the State to protect the plaintiff s personal rights by its laws; it does so not only by violating her personal right to privacy in regard to her marital relations but, in a wider way, by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. Because of the clear unconstitutionality of the section in this respect, I do not find it necessary to deal with the submissions made in support of the claim that the section violates other provisions of the Constitution.”
Griffin J. also referred to the concept of marital privacy as one of the personal rights guaranteed by s. 3(1) of Article 40 at p. 333 of the judgment.
Thus it was for the first time that the right to privacy in any context was recognised as one of the unenumerated rights under the Constitution.
The next case to consider the right of privacy in this extent was the case of Norris v. Attorney General [1984] IR 36. That case considered the constitutionality of laws criminalising homosexual acts between males. In that case the question of the right to privacy was considered, but the majority of the Supreme Court took a restrictive view of the extent of the right of privacy. In the course of his judgment in that case, O’Higginc C.J. noted at p. 64 a right of privacy or, as it has been put, a right “to be let alone”, can never be absolute.
The genesis of the right to privacy culminated in the case of Kennedy v. Ireland [1987] 1 I.R. 587. The decision of the High Court in that case expressly recognised that there is a constitutional right to privacy. That case involved unlawful tapping of the plaintiff s telephone lines. The plaintiff claimed that this was a breach of their personal right to privacy and freedom from unlawful and unwarranted intrusion, guaranteed by Article 40 of the Constitution. In the course of his judgment, Hamilton P. stated at p.590:-
“The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] IR 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated: –
‘The Constitution does not guarantee or, in any way, expressly refer to a right of privacy – no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment (Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments (Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights (Griswold v. Connecticut (1965) 381 U.S. 479) – the contraceptives case; in the Ninth Amendment (Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1(4) – the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions – all conferred by Article 40, s. 6(1); the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] IR 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, s. 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld – the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences – a greater awareness of the need for the enunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts; and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation – thus playing its part in ‘seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .’ as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court ‘the right to be let alone’ – a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 EHRR 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.’”
Having quoted at length the passage from the judgement of McCarthy J. in Norris, Hamilton J. at p. 592 then continued:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] IR 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.”
Mr. McCullagh, S.C. on behalf of the defendant did not dispute the existence of a right to privacy but contended that there was no right to sue a private entity or person for damages for such a breach. He relied on the language of Hamilton P. and in particular the last paragraph of the passage just quoted above to suggest that the liability in respect of damages is limited to the State. He accepted that the right to sue an individual or entity had been assumed in a number of cases but added that such assumption had been made in cases involving interlocutory applications only and not in cases that had gone to full trial. Any case in which the matter was raised and in which the right to claim damages for breach of privacy have been recognised were actions against the State.
During the course of legal argument herein, reference was made to the case of Meskell v. C.I.E. [1973] I.R. 121 by Mr. McDowell, S.C. in support of the plaintiffs contention that a claim for damages for breach of a constitutional right was not limited to actions against the State. The case of Conway v. I.N.TO. [1991] 2 I.R. 305 was also referred to in this context.
It is interesting to note that in the Kennedy case referred to above, Hamilton P. expressly referred to the decision in Meskell at p.593 of his judgement. He quoted from the words of Walsh J. during the course of his judgment in that case where he stated at pp. 132 and 133:-
“A right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
Hamilton P. in the course of the Kennedy judgment having referred to the passage referred to above from Meskell, went on to say as follows:-
“In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.”
I should refer briefly to the decisions referred to by Mr. McCullough, in support of his argument that there is no single decision arising out of the hearing at full trial of a claim for damages for breach of privacy against a private person or entity. The two cases relied on in particular in this regard are the decisions in M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
The facts of M. v. Drury referred to above are strikingly familiar to the facts of the present case. The plaintiff wife and the husband had been involved in family law litigation which resulted in an order for judicial separation being made on the 26th July, 1993. A number of articles appeared in different newspapers published by the defendants reporting the husband’s view that the marriage had broken down by reason of an alleged adulterous relationship between his wife and a Roman Catholic priest, and his intention to bring proceedings against the Roman Catholic Church seeking compensation for the breakdown of his marriage. The plaintiff applied to the High Court for inter alia, an interlocutory injunction restraining the defendants from publishing or communicating to any person any matter or fact, pertaining to her family life. It was submitted on behalf of the plaintiff that since the proposed publications would disclose matters relating to the intimate family relationship of the plaintiff and the defendant, they constituted an invasions of the plaintiff’s right to privacy which right was an unspecified right deriving from the Constitution of Ireland, 1937, and in particular, Article 41 thereof. It was held, by O’Hanlon J. that the proposed publications complained of did not concern the intimacies of married life or marital communications between husband and wife but, allegations of adultery made by a husband against a wife. Accordingly, having regard to the provisions of Article 40 and Article 41 of the Constitution, there was no fair case to be tried as to whether some right of the plaintiff derived from those Articles would be breached by publication of the proposed material. It was also noted by the Court that had the truth of the allegations been contested by the plaintiff, the injunction could have been granted and the law of defamation could have been invoked in aid of the plaintiff’s claim. The court went on to hold that whilst in certain cases the right to privacy, which right was an unspecified right deriving from the Constitution, demanded an intervention of the courts, in general it was desirable that the legislature and not the courts should prescribe the exceptions to the right of freedom of speech. It was also held that having regard to the fact that the husband’s allegations had already been widely aired in the press and to the general undesirability of delaying the publication of material in circumstances where it was likely that the courts would determine that such publication was lawful at the trial of the action, the balance of convenience was against granting the reliefs sought. It is interesting to look at precisely what was said by O’Hanlon J. in the course of his judgment. At p. 14, he commented:-
“It appears to me, however, that what is involved in this case is not a matter concerning the intimacies of married life, or marital communication between husband and wife but rather a matter of allegations made by a husband of an extra-marital liaison entered into by his wife which he was anxious to publicise for the purpose of giving vent to his anger against the third party involved and possibly to reap some financial reward for himself in the process.
If the truth of the allegations were seriously challenged, the courts would certainly intervene in an appropriate case to prevent publication pending trial and the law of libel could be invoked in aid of the plaintiff’s claim. Similarly, in case of a breach of the in-camera rule, as happened in Re Kennedy & McCann [1976] I.R. 382, injunctive relief could be obtained under various statutes dealing with family law matters.
I cannot derive from the provisions of Article 40 or Article 41 of the Constitution any grounds which lead me to believe that there is a fair case to be tried as to whether some right of the plaintiff under those Articles would be breached if further revelations of the kind which have already appeared in print are repeated in the future in the publications of the various defendants or for which they are responsible as distributors or correspondents or otherwise.”
He went on to say at p. 17:-
“There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution – see judgment of Budd J. in McGee v. Attorney General [1974] IR 284 at p. 322) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302, where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).
In the present case, the Court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publications is sure to cause, the children of the marriage were all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular to the strongly expressed guarantees in favour of freedom of expression in that document.”
He went on to deal with the balance of convenience, if it arose, in that case and he noted that there seemed to be little to be gained by granting an interlocutory injunction as maximum publicity had already been given to the husband’s version of events. It seems to me that that case is important for a number of reasons. First of all, it recognises the existence of a right to privacy as one of the personal rights guaranteed protection by the Constitution. Secondly, it does recognise the importance of protecting confidential communications between a husband and wife during their married life together. (Despite the fact that the articles concerned in this case deal with the marital circumstances of the husband and wife, it is clearly not a case in which confidential communications between a husband and wife during their married life together have been disclosed.) The third point that is important to note is the comment of O’Hanlon J. to the effect that it was desirable that it should be left to the legislature and not to the courts to “stake out the exceptions to freedom of speech”. I will return to this point later.
The other case I wish to refer to in this context is the judgment in the case of Cogley v. R.T.E. [2005] 2 I.L.R.M. 529. That case concerned an intended broadcast of a programme in relation to the operation of a nursing home known as Leas Cross Nursing Home. Two sets of proceedings were brought against RTE seeking to prevent the broadcast of the programme. The plaintiff in the first set of proceedings was a Director of Nursing at the nursing hone and the plaintiffs in the second set of proceedings were the owners and occupiers of the nursing home. Using a concealed camera, a worker filmed the operation of the nursing home over a two week period. The plaintiffs in the second proceedings based their application primarily on the allegation that the use of a secret camera was a breach of the right to privacy of the plaintiffs and the patients at the nursing home and constituted trespass. In considering the extent of the constitutional right to privacy as set out in Kennedy v. Ireland, Clarke J. noted at p. 90:-
“However, it is also clear from Kennedy v. Ireland [1987] I.R. 587 that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting authority not to ‘unreasonably encroach’ on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.”
Clarke J. went on to comment as follows:
“A useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought. to prevent, on the one hand. and, on the other hand, the situation where a right to privacy which does not extend to that underlying information but it is contented that the methods by which the information has been obtained amount to a breach of privacy.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors which may be involved, such as the public interest, be able to maintain that the information must always be kept private but may make a complaint in relation to the manner in which the information was obtained.
It seems to me the different considerations apply most particularly at an interlocutory stage, dependant on which of the above elements of the right to privacy is involved.”
Ultimately in that case the court went on to refuse the interlocutory relief sought. Clarke J. did comment (at p. 93) that the plaintiffs had at least made out an arguable case to the effect that the circumstances in which the filming occurred may amount, prima facie, to a trespass and breach of privacy. However, he went on to hold that the mere fact that information may arguably have been obtained in breach of an individual’s rights is not of itself necessarily decisive. He pointed out the importance of weighing in the balance any public interest issues which arise and given that he was dealing with an interlocutory application, the extent to which damages may be an adequate remedy. I find it difficult to draw the conclusion from the decision in that case or indeed from the decision in M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists. What does emerge from the decisions to which I have referred and in particular from the decision in the case of Cogley v. R.T.E. are the following principles:-
(1) There is a Constitutional right to privacy.
(2) The right to privacy is not an unqualified right.
(3) The right to privacy may have to be balanced against other competing rights or interests.
(4) The right to privacy may be derived from the nature of the information at issue – that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally.
(5) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained.
(6) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.
Application of the principles to the facts of this case
Given that I have reached the conclusion that a breach of the constitutional right to privacy is actionable against a private person or entity, it is now necessary to consider in the context of this case whether the matters published by the defendant herein amount to a breach of privacy and the extent to which the right to privacy asserted by the plaintiff herein may be qualified. It was accepted in this case on behalf of the defendant that if there is a right to claim damages for breach of privacy against private individuals, then that right must follow the reasoning of the Supreme Court in Kennedy. On that basis it was accepted that the publication of transcripts of telephone conversations is a prima facie breach of that right if it was deliberate, conscious and unjustified. On that basis it was submitted that the question to be determined is whether the prima facie breach of the right to privacy was “unjustified”.
The defendant relied on a number of matters to justify the publication of the articles complained of herein. Those can be summarised as follows:-
(1) The newspapers’ right to freedom of expression.
(2) The accuracy of the information involved.
(3) The public interest in the information.
(4) The freedom of expression of the plaintiff s husband.
In support of those matters, the defendant relied on a number of authorities. Dealing with those issues as they arose, counsel on behalf of the defendant noted that the question of freedom of expression was not something that arose in the Kennedy case. Reference was made to the judgment of the Supreme Court in Mahon v. Post Publication Limited [2007] 2 ILRM 1 in which Fennelly J. considered the nature of freedom of expression at page 13 and 14 of the judgment:-
“It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Gribbin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television Plc [1994] 3 WLR 20:
‘Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.’”
That is a powerful expression of the right to freedom of expression. It is not authority however for saying that the right to freedom of expression is more significant than the right to privacy. As Hoffmann L.J. noted, the freedom is subject to clearly defined exceptions laid down by common law or statute. It is in that context that the constitutional right to privacy comes into the equation. Accordingly it seems to me that there is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy. It is clear that newspapers are free to publish all sorts of matters regardless of public interest and questions of good taste but, as is the case with the right to privacy, the right to freedom of expression is not an unqualified right. Lord Hoffmann in the passage just quoted above and approved by Fennelly J. noted:-
“This freedom is subject only to clearly defined exceptions laid down by common law or statute.
O’Hanlon J. in the case of M. v. Drury referred to above, quoted the same passage from the judgment of Hoffmann L.J. and he added at page 17 of his
judgment:-
“Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).”
Clarke J. in his judgment in Cogley referred to the fact that:
“There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
It seems to me that those passages have a particular bearing in the context of this case. The publication of the telephone transcripts in this case were obtained in breach of the provisions of s. 98 of the Postal and Telecommunications Services Act, 1983. As previously indicated, s. 98(1) applies to a person who not only intercepts or attempts to intercept or authorises someone else to intercept telecommunications messages but also applies to those who disclose the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message and such person is also guilty of an offence. I cannot see how anyone can assert a right to freedom of expression to publish transcripts of private telephone conversations where the legislature has expressly prohibited the interception of telecommunications messages. This is precisely a situation in which the State has seen fit to lay down by statute an exception to the right to freedom of expression. There is a hierarchy of constitutional rights and as a general proposition, I think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between. However, this may not always be the case and there are circumstances where it seems to me the right to privacy could be such that it would prevail over the right to freedom of expression. One of those circumstances arises on the facts of this case where the freedom of expression asserted is the publication of material obtained unlawfully. One must bear in mind that the provisions of s. 98 of the Act are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.
There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor-patient relationships? What if the individual was a well-known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest.
The second aspect of the matter relied on by the defendant herein related to the accuracy of the information. Undoubtedly that was a factor in the case of M. v. Drury referred to above. The facts of that case are, as mentioned previously, very similar to the facts of this case. In that context, O’Hanlon J. stated at page 17:-
“In the present case, the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause the children of the marriage who are all minors. This would represent a new departure in our law, from which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document.
I therefore do not find that it has been shown that there is a fair case to argue when the case comes on for full trial, an on this ground I refuse the application for interlocutory relief.”
The fact that the material is accurate does not of itself give rise to a right to publish the material. As I have noted above the right to freedom of expression is subject to exceptions at common law and subject to statutory restriction. The fact that the material is accurate would not in my view avail the defendant in this case where the material at issue is disclosed contrary to a statutory exception to the right to freedom of expression.
The third point relied on by the defendant is the public interest. In essence the submission of the defendant was that the information that appeared in the articles complained of concerned a Catholic priest. It was submitted that the Catholic Church demands celibacy of its priests and that a Catholic priest and in particular a parish priest is a public figure. On that basis it was contended that there was a legitimate public interest in whether a parish priest is having an affair with a married woman. In this context reference was made to the decision in the case of A. v. B. Plc [2003] QB 195 where the Court of Appeal noted:-
“Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion that follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
I would make a number of observations about this line of argument. First of all the public interest in this particular case, such as it may be, is asserted to be a public interest in the behaviour of Fr. McMahon, who is of course, not the plaintiff herein. Much of the material that appeared in the course of these three articles concerned the plaintiff. Given the nature of the role of a Catholic priest in Irish society, Fr. McMahon could well be said to be a person whose conduct may be subject to public scrutiny as outlined in the case of A. v. B. referred to above. It is inevitable that if information is disclosed about a public figure such as a priest, that could expose others in the position of the plaintiff herein to unwelcome intrusion into their lives. In such circumstances I think that as a general proposition the right to freedom of expression would outweigh the right to privacy of the individual in the position of the plaintiff herein. However, in considering that aspect of the matter one would also have to have regard to the extent of the information in relation to the individual concerned and once again, one would have to have regard to the means by which the information was obtained and the type of disclosure that occurred. Accepting as I do that there is such a public interest of the kind contended for by the defendant, nonetheless, that public interest remains subject to the caveat that the limits on the right to freedom of expression cannot be ignored simply by recourse to the public interest. In other words, the right to freedom of expression is as stated before, not an unqualified right. It is subject to exceptions at common law, for example, by means of defamation law (if the publication is not accurate) and by legislation. I can see no basis for saying that the public interest arising on the facts of this case could be such as to set at nought the restriction on the disclosure of telecommunications messages prohibited by s. 98 of the Postal and Telecommunications Services Act 1983. It simply cannot be so.
The final point raised relates to the right to freedom of expression of the plaintiff s husband. In the case of A. v. B. Plc. referred to above, it was noted by the court as follows:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
Thus it was submitted that where the information comes from a party to a marriage this is a relevant fact to consider in circumstances where one of the parties to the marriage wishes to give information to newspapers. That passage recognises the difficulty that is to some extent at the heart of this case, namely that one person’s right to privacy or as stated in that case to maintain confidentiality, must impact on the other’s right to freedom of expression. In such situations one has to weigh up the conflicting interests and find where the balance lies. However, for the reasons I have already outlined, such considerations do not arise where the material comes from a source which is prohibited by law as in this case, namely, telephone tapping.
Accordingly, I am satisfied that the publication of the transcripts of telephone conversations in this particular case by the defendant in breach of s. 98 of the 1983 Act, can only be described as a deliberate, conscious and unjustified breach of the plaintiff’s right to privacy.
Other issues
During the course of submissions in this case, Mr. McDowell, S.C. on behalf of the plaintiff in the course of submissions made the comment that there was no real significant or weighty public interest involved in these proceedings in the publication of private information pertaining to the plaintiff s private life. It was stated that the argument of the defendant could have carried some weight had the defendant limited its publication to details about Fr. McMahon and Fr. Cleary. He went on to say that the exposure of the plaintiff s private life without any basis in public interest and was designed purely to create a salacious and prurient article. As I have already indicated, I can see some basis for the identification of the plaintiff as a person involved in a relationship with Fr. McMahon. However, much of the material published in the articles and concerning the plaintiff could not have any bearing on the public interest asserted by the defendant. In any event much of the material published consisted of the contents of transcripts of private telephone conversations of the plaintiff. For the reasons outlined above there could be no basis for the publication of that material.
Submissions were made to me in relation to the right to privacy as protected under the European Convention of Human Rights. The publication in this case occurred before the European Convention on Human Rights Act 2003, came into effect on the 31st December, 2003. It was noted in the course of submissions that the right to freedom of expression under the Constitution were in accordance with the provisions of the European Convention on Human Rights, and it does not seem to me to be necessary to make any observation on the provisions of the Convention.
Submissions were also made in relation to a contention that the publication of the material in this case amounted to a breach of confidence. It does not seem to me to be necessary to deal with this issue in the light of the findings expressed above.
Further it was contended that the publication by the defendant of the telephone conversations amounted to a breach of statutory duty giving rise to a claim for damages. Again I do not think it is necessary to consider this aspect of the matter.
The final matter raised by way of argument was that there was a conspiracy on the part of the defendant and others in relation to the publication of the transcripts of the plaintiff s private telephone conversations for the purpose of injuring the plaintiff. Again I do not think it is necessary to consider this aspect of the case in the light of the views expressed in relation to the plaintiff s claim for damages for breach of her right to privacy.
Damages
The final issue to be considered in this case is the issue of damages. The first comment I want to make in relation to the question of damages is that I accept the evidence given by the plaintiff in this case. In that regard I accept that the marriage of the plaintiff and her husband had broken up before her relationship with Fr. McMahon commenced. I accept that there was no real effort made by the defendant to get the plaintiff’s side of the story in relation to the breakdown of the marriage. I accept that what appeared in the newspaper articles complained of was an account based solely on her husband’s version of events. There was a phone call made to the plaintiff on the day before the publication of the first of the articles complained of, but I cannot accept that it was a genuine attempt to obtain her side of the story. In any event, that would not justify a breach of a right to privacy. I accept that while she was asked about her relationship with Fr. McMahon in the phone call that took place, she was never asked anything about her friendship with Fr. Eddie Cleary or the circumstances in which that friendship came about. Finally I accept that the plaintiff was very distressed as a result of the publication of these articles exposing, as they did, to public scrutiny transcripts of her private telephone conversations.
Counsel on behalf of the plaintiff in the submissions in respect of damages referred to the decision of the Supreme Court in the case of Shortt v. Commissioner of An Garda Síochána [2007] IESC 9, in which the law in respect of damages in tort or for breach of a constitutional right were considered. It was stated by Murray C.J. as follows:-
“In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case …
In Conway v. I.N.T.O. Finlay C. J. stated:-
‘In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to
repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
Bearing in mind those principles, it seems to me that the plaintiff herein is entitled to compensatory damages and I am also satisfied that she is entitled to aggravated damages. I am also satisfied that this is a case in which punitive damages should be awarded. I propose to deal with the issue of ordinary compensatory damages and aggravated damages together. In this regard I accept the evidence of the plaintiff that she was very distressed as a result of the flagrant and unwarranted breach by the defendant of the plaintiff s right to privacy. The publications at the heart of this case took place over a three week period designed to extract the maximum value out of the telephone transcripts of the plaintiff s conversations. Use was made of family photographs and information as to the plaintiff s family circumstances, history and background which could have had no bearing whatsoever on the public interest asserted by the defendant herein. However, the most serious aspect of this case was the use by the defendant of material obtained unlawfully as a result of an illegal phone tap, which was in turn, obtained by the defendant from a husband motivated by revenge. Balanced against that must be the fact that it seems to me that some limited information as to the plaintiff could have been legitimately brought into the public domain had the defendant chosen to write about the conduct of Fr. McMahon, in embarking on a relationship with the plaintiff. Unfortunately for the defendant, it chose to go beyond what would have been permissible in the exercise of its right to freedom of expression by making use of material obtained unlawfully. In this context, the passage from the judgement of Clarke J. in his judgement in Cogley at p. 539 is particularly apposite to the facts of this case:-
“In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right to privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
I should briefly add that complaint was made during the course of this case about the conduct of the defendant in the course of the trial of this action. Complaint was made as to the presence of a photographer and the conduct of the same photographer during the course of this trial. It appears that the photographer was seen in the company of the defendant’s representatives during the course of the trial. While that matter was ventilated in court, it does seem to me that one of the consequences of engaging in litigation is that parties will necessarily be subjected to the sometimes unwelcome attention of photographers. This is one of the modern day incidents of litigation and does not in my view amount to an element which could or should result in aggravated damages in the circumstances of this case.
Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in the case of Conway referred to above, it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.
Domican v AXA Insurance Ltd
[2007] I.E.H.C. 14JUDGMENT of Mr. Justice Clarke delivered the 19th January, 2007.
1. Introduction
1.1 The net issue in this case arises in the changing landscape within which claims relating to personal injury are now progressed. The background to the dispute between the parties stems, at least in part, from the operation of the Personal Injuries Assessment Board (“PIAB”). However the proceedings do not involve PIAB itself, but rather what are contended to be knock on effects of the establishment of PIAB on the negotiation of early settlement of straightforward personal injury claims.
1.2 In simple terms the issue between the parties concerns the question as to whether the defendant (“AXA”), in its capacity as insurer, is entitled to copy its correspondence concerning the claim made by the plaintiff (“Mr. Domican”) to Mr. Domican directly notwithstanding the fact that Mr. Domican has given written instructions to the effect that all such correspondence should be addressed to his solicitors and that no contact is to be made directly with him.
2. Procedural History
2.1 The dispute between the parties having arisen, Mr. Domican issued proceedings and brought an application seeking an interlocutory injunction restraining AXA “from interfering in the solicitor/client relationship between the plaintiff and his solicitor by communicating .. directly with the plaintiff .. or otherwise howsoever harassing or molesting the plaintiff in connection .. with his claim for damages against one Patrick Doyle for personal injuries suffered and sustained as a result of an accident on 17th July, 2005 on the Collinstown Road, Clondalkin, Dublin 22.”
2.2 A supplementary order was also sought directing AXA to abide by written authority signed by Mr. Domican of 28th August, 2006 relating to the same claim for damages. That written authority sought to direct AXA to communicate with Mr. Domican only through his solicitors.
2.3 AXA also brought a motion before the court which sought an order dismissing Mr. Domican’s claim on the grounds that it failed to disclose a stateable cause of action or was frivolous, vexatious and an abuse of the court process and bound to fail.
2.4 It being clear that there were no significant issues of fact between the parties and that the question of law raised, while to an extent novel and undoubtedly of some importance, was nonetheless quite net, I suggested, and the parties readily agreed, that the trial of both motions would be treated as the trial of the action. Both applications were heard together on that basis and this judgment is, therefore, directed to the question of whether Mr. Domican is entitled, in all the circumstances of the case, to the relief which he claims.
3. The Facts
3.1 As is implicit in the orders sought, Mr. Domican claims to have been injured in a road accident, which injuries, he says, are attributable to the negligence of an insured of AXA. It does not appear to be in dispute but that AXA are liable to indemnify the person concerned and that, therefore, at a commercial level, the question of the payment of compensation to Mr. Domican arises, in practice, between him and AXA.
3.2 Mr. Domican’s claim progressed in a normal manner. Messrs. H.J. Ward and Company Solicitors, (“Mr. Domican’s solicitors”) whom he had instructed, wrote to Patrick Doyle on 28th August, 2006 seeking an admission of liability on the part of Mr. Doyle in relation to the accident. Mr. Domican’s solicitors were already aware of the fact that AXA appeared to be the insurers of Mr. Doyle and wrote on the same date to AXA enclosing a copy of the letter to Mr. Doyle and also a letter of authority from Mr. Domican. Amongst other things the letter of authority contained the following statement:-
“I do not wish to receive any communication from you by way of correspondence. Similarly, if you wish to make contact with me by telephone, please do so by telephoning my solicitors and leave any message with them. Please do not contact me”.
3.3 In accordance with the Personal Injuries Assessment Board Act 2003 (“the 2003 Act”) and in particular ss. 11 and 50 of that Act, it was necessary for Mr. Domican to first make an application for an assessment of his claim to PIAB. This, together with appropriate supporting documentation, was done by letter of 15th September, 2006. PIAB having drawn attention to an incompleteness in the application, and having had that matter dealt with, acknowledged, on the 29th September, 2006, that the application was complete for the purposes of s. 50 of the 2003 Act.
3.4 It is, of course, therefore, the case that, so far as court proceedings are concerned, the matter as and between Mr. Domican and Mr. Doyle (and in reality AXA on behalf of Mr. Doyle) is frozen until such time as PIAB have dealt with the case. That is not, however, a barrier to a settlement of the proceedings being reached between Mr. Domican and AXA at any stage.
3.5 Against that background AXA sought to progress the question of possible settlement by correspondence directed to Mr. Domican’s Solicitors but, it would appear, copied in each case directly to Mr. Domican. There can be no doubt that the copying of the correspondence to Mr. Domican was in breach of his request to AXA not to contact him directly. The question that arises in this case is as to whether, in copying the correspondence directly to Mr. Domican, contrary to Mr. Domican’s request, AXA are acting in anyway unlawfully such as would justify the court intervening by way of injunction. Those undisputed facts are sufficient for the issue to arise. However there are a number of other factual matters that were canvassed in the course of the affidavit evidence filed by the parties, on which it is necessary to touch before going on to consider the legal issues which arise.
4. Some Facts in some controversy
4.1 While there are no disputes between the parties as to the primary facts in this case there are some aspects of the factual contentions put forward that, while not directly material to the issues, are relevant to the background to the dispute and in relation to which there is at least some difference of opinion as to how the facts should be interpreted or characterised. I propose dealing with some of those issues.
4.2 The first matter concerns the position adopted by Mr. Domican, on advice his solicitors, in relation to an early settlement. It is clear that Mr. Domican was advised that his best interests would lie in awaiting an assessment of his claim by PIAB. In the course of the hearing it was suggested that the reason for such advice stemmed from the experience of those advising Mr. Domican that the level of compensation likely to be assessed by PIAB would exceed, in many cases, any amount offered at that stage by AXA so that it was, it is said, in Mr. Domican’s interest to wait and see what PIAB would award. It is certainly the case that it was maintained in correspondence on behalf of Mr. Domican by his solicitors that it was, in their experience, the case that offers made by AXA during a period while the case was under assessment by PIAB were, invariably, less than the amount which PIAB ultimately determined on. It is not for me, in this case, to determine whether that assertion is factually accurate. I should, however, comment that it seems to me that there is at least an arguable basis for the advice given to Mr. Domican and no established basis for suggesting that it was not reasonable advice designed to achieve the best possible award of compensation for his injuries. In substance, though not put this way, the advice was to the effect that it was likely that he would ultimately achieve a higher sum in compensation if he were to wait and see what assessment PIAB came up with.
4.3 A second factual issue arose in connection with correspondence in early October 2006 in which AXA states that “claims processed by Personal Injuries Assessment Board (PIAB) can take up to a year before an award is issued …”. A number of observations seem to me to be appropriate. Firstly it is interesting that a significant insurance company appears to be suggesting to those who may have claims against it that there are delays in PIAB which are holding up the early resolution of proceedings. It is, again, neither necessary or appropriate for me to reach any conclusions as to whether that assertion is factually accurate. I note that Mr. Ward (the solicitor for advising Mr. Domican) has indicated in the course of his affidavit in these proceedings that the assertion concerned is in conflict with his experience and that any delays are, at least in material part, due to the failure of AXA to progress matters with PIAB in a timely manner. If it were to be true that the existence of PIAB was acting as a barrier to early settlement of any significant number of cases it would amount to an unfortunate consequence of legislation introduced to improve and streamline the resolution of straightforward personal injury litigation.
4.4 In particular, however, complaint is made on behalf of Mr. Domican that the communications containing those assertions amounted, in effect, to seeking to undermine the advice given to Mr. Domican by his solicitors. This is an issue to which I will have to return.
4.5 A further area of controversy concerns the circumstances surrounding a medical appointment arranged by AXA for Mr. Domican. It would appear that AXA raised the question of a medical appointment for Mr. Domican, with a medical assessor to be appointed by AXA, in correspondence and then proceeded, unilaterally it would appear, to make a specific appointment for Mr. Domican without ascertaining in advance his willingness to attend such an appointment. In the event he did not attend the appointment and in subsequent correspondence AXA drew attention to the fact that costs had been incurred by reason of the fact that the appointment was not met without prior cancellation. While it is, strictly speaking, true to state that the relevant correspondence, on a careful reading, does not purport to seek to make Mr. Domican responsible for those costs, it seems clear on the affidavit evidence that both he and his legal advisors interpreted the letter as seeking to impose such costs upon Mr. Domican. I have to say that I can see how the letter might have been so read even though, on a careful construction, no actual threat to seek to impose such costs is to be found in the letter.
4.6 There is nothing, of course, wrong with AXA seeking to have Mr. Domican, or any person in his position, attend to a medical examination. Such an examination may well facilitate settlement of the proceedings, for if there is relative unanimity in the medical opinion as to the actual injury suffered, then it will be much easier to arrive at an agreed valuation of the appropriate compensation to be paid. It is also clearly the case that the court has a discretion to stay proceedings for personal injuries where a plaintiff unreasonably fails or refuses to attend a medical examination arranged by the defendant or, in practice, the defendant’s insurers. However there is no legal obligation on a potential plaintiff to attend for such a medical examination until proceedings have been commenced and have reached a stage where it is appropriate for the defendant to seek such an examination. Since the advent of PIAB, proceedings will be postponed (in those cases which ultimately go to court) until after the claim has been through the PIAB process. That will, inevitably, lead to a situation where the legal entitlement of a defendant to obtain a medical examination will be delayed. However that situation is an inevitable consequence of the freezing of legal proceedings which is an inherent part of the PIAB process.
4.7 While it is, therefore, open to an insurer, such as AXA, to seek a medical examination while a plaintiff’s claim is frozen, so far as court proceedings are concerned, pending a decision from PIAB, it is equally clear that a claimant, such as Mr. Domican, is entitled, at that time, to refuse any such invitation. In such circumstances I do have to say that it seems to me that it was somewhat foolish of AXA to arrange an actual medical appointment at a time when they had not secured Mr. Domican’s agreement to attend to any appointment. In those circumstances the tone of the letter of complaint could reasonably be described as unfortunate.
4.8 Finally a further factual issue has arisen concerning an offer of settlement which was contained in correspondence from AXA to Mr. Domican’s solicitors and copied directly to Mr. Domican. There is, again, nothing objectionable in AXA making such an offer and indeed such a practice is to be encouraged given the public policy considerations which favour the early settlement of potential litigation. Nothing in either the principles behind or the detailed provisions of the 2003 Act, have altered the policy considerations which favour the early settlement of claims. However it must equally be said that the position taken by Mr. Domican, on advice from his solicitors, that he would be best advised to wait and see what came out of PIAB by way of an assessment of his claim is equally a sustainable position. What gives rise to controversy is that it does not appear that Mr. Domican’s solicitors were informed of the fact that the letter making the offer in settlement had been copied directly to Mr. Domican. This is stated on behalf of AXA to be an oversight. It would appear that in respect of all other elements of correspondence copied to Mr. Domican the original was sent to his solicitor (frequently by fax) but in so sending it was made clear that the relevant correspondence was being copied to Mr. Domican. This does not appear to have occurred in relation to the letter of offer.
4.9 It would also appear that Mr. Domican’s solicitors were able to point to another case (unconnected with these proceedings) in which an identical practice appears to have been engaged in by AXA, in that all correspondence was copied directly to the claimant concerned, and in respect of all of the relevant correspondence with the exception of a letter of offer, it was made clear in the communication to the solicitors concerned that the relevant correspondence was being copied to their client. Whether or not the case of Mr. Domican and the other relevant case represent two coincidental errors, or a practice on the part of AXA, is not possible to conclude on the evidence currently before me. However it must be said that it is somewhat suspicious that the same error should have occurred at the same point in the process in two separate cases. That is particularly so when the error appears to have related to what might well be regarded as the most important part of the process, that is to say the communication of a specific offer in settlement. If it were to be the case that AXA has or had a deliberate practice to that effect then it could only be inferred that the purpose of such a practice was to attempt to communicate an offer directly to the claimant concerned without the claimant’s solicitors being aware of the fact that such an offer had been directly communicated to the client.
4.10 There are, therefore, certain aspects of the facts which justify adverse comment about AXA’s practice. The manner in which the missed medical appointment was dealt with seems to me to be unreasonable. There is the possibility that there might be a practice of communicating a copy of an offer in settlement made to the solicitor, directly to the client, in circumstances where the solicitor concerned was not informed of the copying. It is also common case that the direct copying of communications, of what ever form, and even if not subject to the above criticisms, to Mr. Domican was against his expressly communicated wishes.
However the real issue in this case is not as to whether the practice engaged in by AXA (which appears to be a standard practice of the company) might be the subject of legitimate complaint by Mr. Domican but rather whether there is anything unlawful about it. I now turn to that question.
5. The Law
5.1 A variety of possible bases for suggesting that the largely agreed facts of this case demonstrate a legal basis for the reliefs claimed were canvassed in the course of argument.
5.2 Firstly, although not pressed as the strongest point, it was suggested that the receipt of communications from AXA which Mr. Domican, to the knowledge of AXA did not wish to receive, amounted to a breach of Mr. Domican’s constitutional right to privacy. That such a right exists has been clear since Magee v. Attorney General [1974] IR 284 and Kennedy v. Ireland [1987] I.R. 587. As I observed in Cogley v. RTE [2005] 4 IR 79:-
“It is … clear from Kennedy v. Ireland that a right to privacy is one of the personal rights of the citizen guaranteed by, though not specifically mentioned in, the constitution.
However it is also clear from Kennedy that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good.”
5.3 As against those undoubted rights must also be considered AXA’s undoubted constitutional right to communicate. Such a right has also been identified in such cases as Attorney General v. Paperlink [1984] ILRM 373 and Murphy v. Independent Radio and Television Commission [1999] 1 IR 12. Equally such a right is not absolute and is subject to qualification.
5.4 It must also be noted that the background to the relationship between the parties to these proceedings is that they are, inevitably, involved with each other. The plaintiff has a claim which, in commercial substance though not in form, is as against AXA. They are not, therefore, total strangers, and it is necessary that there be some communication between them with appropriate respect for both parties rights. I am not satisfied that it has been established that Mr. Domican’s right to privacy extends to the narrow question of the manner in which communication with him is to be conducted. Indeed most of the decided cases involve obtaining and disclosing information rather than communicating information. Clearly if the manner of such communisation were oppressive different considerations might apply. However it can hardly be said that the simple receipt of information by being copied directly with it in circumstances where the person concerned will, necessarily, have to receive the same information indirectly through his solicitors could in any event amount to a breach of the constitutional right to privacy.
5.5 In similar vein it does not seem to me that the actions of AXA could be said to be in breach of the right to privacy guaranteed by the European Convention on Human Rights as applied in Ireland by the European Convention on Human Rights Act, 2003.
5.6 For similar reasons I have come to the view that the actions of AXA could not amount to a private nuisance or to harassment or molestation. I leave for consideration to a case where, on the facts, the issue arises in an appropriate manner, the question as to whether excessive communication by letter, fax, telephone or any other medium might amount to a private nuisance and the question of whether similar actions might among to harassment sufficient to give rise to a civil wrong. Certainly Khorasandjian v. Bush (1993) 2 FLR 66 suggests such a possibility. If such a cause of action is found to exist it seems to me that it could only arise where the extent of the communication was such as might interfere, to a material extent, with the reasonable enjoyment by a person of their home, place of business, or life. It is difficult to see how the communications in this case would qualify under that heading. Irrespective of the legal parameters that might apply to any such claim, such a claim some could not, it seems to me, arise on the facts of this case under either of those headings.
5.7 That leads to the last, and most difficult, of the issues raised. It is suggested that the course of action adopted by AXA amounts to an infringement of the plaintiff’s solicitor/client relationship. That any claimant is entitled to the benefit of legal representation in proceedings, or potential proceedings, cannot be doubted. It may well be that any action taken by an opposing party or potential party whose object or significant effect was to impair the entitlement to obtain and benefit by such legal advice and representation might well amount to a sufficient interference in the course of justice as would entitle a court to intervene.
5.8 However it is necessary to identify the extent to which the actions of AXA in this case, even taken at their height, could be said to amount to an interference in the solicitor/client relationship. With the exception of the contention, to which I have referred, concerning the comments made by AXA in correspondence concerning delays likely to be encountered in PIAB, none of the other elements of the correspondence seems to touch directly on any aspect of the relationship between Mr. Domican and his advisors. All of the correspondence is, as a matter of form, directed to his solicitors. The correspondence is merely copied to Mr. Domican, albeit against his wishes. The contents of the correspondence contains entirely appropriate matter to be communicated in a process such as that with which all concerned were involved. As previously indicated there was nothing wrong in seeking to have a medical examination. Furthermore it was entirely appropriate for AXA to make an offer in settlement.
5.9 This leads me to one somewhat curious aspect of the argument in this case. It was expressly stated on behalf of AXA that no criticism of any sort was being levelled against Mr. Domican’s advisors. In passing it should be noted that the practice shown on the facts of this case appears to be a general practice engaged in by AXA. It, therefore, applies irrespective of what firm of solicitors may be instructed on behalf of the claimant concerned. It should also be noted that it was asserted, and would appear to be the case, that it is a general practice on the part of the solicitors advising Mr. Domican (and also possibly other firms of solicitors) to obtain a written authority from their clients in a similar form to that obtained from Mr. Domican in this case. There would appear, therefore, to be a significant number of cases in which various firms of solicitors communicate on behalf of their clients to AXA that the client concerned does not wish to receive direct communication. It appears to be the universal practice of AXA to ignore such requests. Hence the issues which arise in these proceedings appear likely to arise in a significant number of cases.
5.10 I note these matters to emphasise that no criticism was voiced on behalf of AXA, in general terms, in respect of the solicitors involved in any such cases where a dispute may arise as to the appropriateness or otherwise of correspondence being copied directly to the client. The reason why I touch upon the absence of criticism is that it seems to me, at least to some extent, to be inconsistent with the stated basis for the desire on the part of AXA to copy correspondence directly to the client. That stated basis is to the effect that it is desired to bring about early settlement where possible. It follows that it must be the view of AXA that the copying of correspondence directly to the client is more likely to lead to an early settlement than merely corresponding directly with the solicitor concerned. For that to be true there must be at least an implicit criticism to the effect that solicitors in general are insufficiently proactive in progressing possible settlement negotiations on behalf of their clients and that it is necessary to involve the client directly to keep pressure on the solicitor so as to achieve such an early settlement. If AXA did not believe that to be the case then it is hard to see how the practice engaged could be of any benefit. The only reasonable inference to draw is, therefore, that the practice is designed to make it more likely that the client concerned will raise the questions dealt with in correspondence directly with their solicitor quicker than the solicitor might, if left to his or her own devices, raise the question with the client.
5.11 The only authorities to which I was referred which touch upon the question of communications directly with parties who have legal representation, do not seem to me to deal, in any material way, with the issues which I have to decide in this case.
AXA draws attention to Re Margetson and Jones (1897) 2 Ch 314 where it was held by Kekewich J. that:-
“It is a professional rule that where parties to a dispute are represented by solicitors neither of those solicitors should communicate with the principle of the other touching the matters in question. That is a rule binding the profession as gentlemen, but it is only highly consonant with good sense and convenience …”.
However the court went on to observe:-
“But the courts have uniformly held, without in the least degree impeaching the propriety and advantage of that rule, that if the solicitor for the one party meets the principal on the other side and a bargain is made, that bargain is good. It cannot be said that the principal’s authority is gone, because such a thing as that is impossible; and therefore, whether there is a litigation pending or not, if the solicitor for the defendant meets the plaintiff and effects a comprise with him, that comprise is binding upon the plaintiff or the defendant, as the case may be, notwithstanding that up to that time had had been represented by a solicitor. That is as consonant with common sense as the rule itself; but what the court has also said is that it must be done honestly and in a straightforward way to get rid of the litigation for the sake of peace, and not with a view to depriving the solicitor of his costs. If the one solicitor meeting the party on the other side, or the two parties comprise knowing of the lien of the solicitor and intending to defeat it, that shall not be allowed; and the only question, therefore, is whether that was the intention”.
5.12 That case was, as the above passages demonstrate, concerned with a situation where both sides were represented by solicitors and where the solicitor on one side effected a settlement directly with the client on the other side. In principle the settlement was upheld subject to the caveat that if the agreement was reached for an improper purpose it might be set aside. There might, of course, be other situations where a settlement arrived at in such circumstances might also be set aside. The case is, nonetheless, authority for the proposition that direct contact with a client, even though he may have a solicitor, is not necessarily unlawful even though it may, if done by a solicitor, be unprofessional.
5.13 However it would seem clear that what the court was concerned with in Margetson was a case where the client, or principal, on one side was happy to engage in negotiations directly with the solicitor on the other side and without the benefit of his own solicitor being present. The case has little, therefore, to say about a situation, such as arises here, where the principal, or client, has expressly stated that he does not wish the communication to take place.
5.14 Mr. Domican drew attention to the decision of MacMenamin J. in O’Brien v. PIAB (Unreported, High Court, MacMenamin J., 25th January, 2005). In that case MacMenamin J. determined that the practice adopted by PIAB in declining to accept or act upon client authorisation and by corresponding directly with the client concerned was in breach of s. 7 of the 2003 Act. The case was, therefore, principally about statutory construction and the question of whether it is appropriate or possible to exclude a client from having his solicitor, if he so wished, be the point of contact. It should also be noted that that case is under appeal. In any event it seems to me to deal with a different issue to the one with which I am faced in this case. O’Brien was not about excluding the client from being subject to direct contact.
6. Conclusions
6.1 There does not, therefore, seem to be any significant authority on the point in issue in these proceedings. I have come to the view that, as a matter of principle, a party’s entitlement to have access to the courts and to have the benefit of legal assistance in so doing, carries with it an entitlement to restrain any action which would amount to a material or significant interference with such parties relationship between them and their legal advisors in the context of litigation or potential litigation.
6.2 The real issue which falls for decision in this case is as to whether the actions of AXA can be so characterised. I have come to the view that they cannot. It does not seem to me to be appropriate to conclude that the mere copying of information directly to the client, which information the solicitor would, in any event, be under a duty to tell the client about, to advise the client on, and to act on the client’s instructions arising out of, amounts to a significant or material interference in the solicitor/client relationship.
6.3 If it were to transpire to be the case that any of the actions of a party such as AXA were designed to or would objectively speaking, be likely to, undermine the solicitor/client relationship in any material respect then I would come to a different conclusion. Under that heading the only matter that could conceivably be advanced as being likely to give rise to such a consequence is the statement contained in the AXA letter concerning the delays likely to be encountered in PIAB. It is said that that statement had the potential to undermine the advice given to Mr. Domican to await the PIAB determination. I am not satisfied that that is a reasonable assessment of the AXA letter. The AXA letter simply contains a generalised statement about delays in PIAB as a means for suggesting that there should be an early settlement independent of PIAB. The merits or otherwise of engaging in such an early settlement are a matter upon which parties can form there own view and will, in so doing, doubtless take into account a variety of factors. It does not seem to me to be an issue which could be said to have the potential, to any material extent, to undermine the relationship between a client and his or her solicitor. It should be noted, however, that there might well be aspects of correspondence that might pass between an insurance company and a firm of solicitors acting for a claimant in the course of progressing a claim which correspondence may be less routine than that engaged in in this case. Some such cases may become acrimonious. The correspondence may reflect that fact. There may well be circumstances where the copying of such correspondence directly to the client might be reasonably understood by a client to amount to a suggestion on the part of the insurers that the client’s best interests were not being looked after by the solicitor concerned. In such circumstances the direct copying of correspondence might give rise to different inferences and might amount to a material interference in the solicitor/client relationship. Nothing in this judgment should be taken, therefore, as implying that the copying of correspondence is always, and in all circumstances, lawful. Similarly the volume of communication, or its manner, might, in a different case, amount to nuisance, harassment or molestation.
6.4 However for the reasons which I have set out, and on the facts of this case, which concern merely the copying of a small number of letters of a relatively normal, almost routine, nature could amount to any of the legal wrongs asserted. In those circumstances I would propose to dismissing the plaintiff’s claim.
Gray v Minister for Justice, Equality and Law Reform
[2007] I.E.H.C. 52, Quirke J. JUDGMENT of Mr. Justice Quirke delivered on the 17th day of January, 2007
The first and second named plaintiffs are the married parents of five children. The third named plaintiff is their eldest son, who is now 26 years old.
The plaintiffs’ family was permanently resident in Blanchardstown, in Dublin until 1995 when the family moved to Ballybunion in Co. Kerry under the terms of a rural resettlement scheme introduced by the government.
After arrival in Ballybunion the family was accommodated in houses close to the town for two successive 12 month periods. The family members were then provided with a permanent house in Marconi Avenue in Ballybunion, which is a small housing estate in the town. They settled successfully into their new home and the first-named plaintiff, Alan Gray, who is a steel erector, obtained employment at various locations in Kerry, in Co. Clare and in Co. Cork.
On a date between the 8th April 1999 and the 12th April 1999 the plaintiffs and their family members decided to abandon their home in Marconi Avenue in Ballybunion and to return to live permanently in Dublin.
They claim that they were forced to abandon their home by reason of the unlawful actions of members of An Garda Síochána in Kerry who, they claim;
(a) wrongfully, negligently and unlawfully disclosed to journalists in The Kerryman newspaper and The Examiner newspaper and to other journalists and members of the media that James O’Donoghue, who was and is a dangerous convicted rapist, was living with them in their home in Marconi Avenue, Ballybunion. As a result, it is claimed, the plaintiffs were subjected to abuse, harassment and intimidation of such a character that they were obliged to leave their home in Ballybunion permanently.
(b) acted in breach of a duty of confidence owed by the State to the plaintiffs not to disclose sensitive and inflammatory information to the media when such disclosure was likely to place the information in the public domain and to result in the harassment and intimidation of the plaintiffs and a violation of their constitutionally protected right to live peacefully in their home.
(c) on the 4th April, 1999, through two of its members, unlawfully entered the plaintiffs’ home in Marconi Avenue, assaulted and battered the third-named plaintiff, Francis Gray and threatened James O’Donoghue with physical violence if he did not leave Ballybunion.
The plaintiffs claim damages for personal injuries, loss, damage, upset, inconvenience and distress which, they say, they have suffered as a direct consequence of the unlawful actions of members of the Gardaí who are the servants and agents of the State.
Relevant facts
1. In February of 1999, Alan Gray, at the request of his brother, agreed to provide his nephew, James O’Donoghue with temporary accommodation for a short time in the Gray home in Ballybunion. James O’Donoghue had been convicted on a charge of violent rape and had been sentenced to serve a term of 15 years imprisonment.
He had served 12 years of that sentence and was due to be released on the 15th February. He had earlier convictions for robbery and indecent assault. Arising out of his earlier convictions he complained that he had been subjected to a serious assault. He made it known that he was very fearful that he would be violently assaulted upon his release from prison. It was because of his fears that his father requested his brother, (the first-named plaintiff, Alan Gray), to provide him with temporary accommodation in Ballybunion.
Alan Gray agreed to do so for a short time, (estimated to be a few weeks). Alan Gray’s wife, Phyllis, the second-named plaintiff was very unhappy with this arrangement but was reluctantly persuaded to agree to accommodate James O’Donoghue for a short time.
Immediately after his release on the 15th February, 1999, James O’Donoghue, who was then in his early 30’s, arrived in Ballybunion where he took up residence in the Gray family home in Marconi Avenue.
2. After their arrival in Ballybunion in 1995 the plaintiffs’ children had settled happily into the community in Ballybunion. They attended the local community school and actively and happily participated in community activity.
In February of 1999, when James O’Donoghue arrived in Ballybunion the plaintiffs’ daughter Lucy was sixteen years old. Their sons, Alan (Junior), Paul and Robert were aged thirteen years, ten years and eight years respectively.
At that time there were six uniformed and one detective Gardaí attached to Ballybunion Garda Station. The Garda Station was manned between the hours of 9 a.m. and 2 p.m. daily and was under the administrative and supervisory control of the Garda District Headquarters at Listowel.
3. On 25th March, 1999 Garda Daniel O’Connor, a uniformed Garda attached to Ballybunion Garda Station, was requested to investigate the whereabouts of James O’Donoghue on 16th March, 1999. The request came from the Garda Divisional Headquarters at Listowel and arose as the result of an enquiry from a Garda Martin Walsh of Ronanstown in Dublin. Garda Walsh was then investigating a criminal sexual offence in Clondalkin in Dublin which was alleged to have occurred on 16th March, 1999.
Arising out of the enquiry Garda O’Connor went to Marconi Avenue in Ballybunion on 25th March, 1999. He met with the first and second named plaintiffs, Alan and Phyllis Gray, who were walking close to their home. Garda O’Connor had a conversation with Mr. and Mrs. Gray who confirmed that Mr. O’Donoghue was then residing with them in their family home.
4. The enquiry from Garda Martin Walsh was recorded in a book called an “Occurrence Book” which was maintained at the Garda Divisional Headquarters at Listowel.
Garda Daniel O’Connor recorded the result of his enquiries about James O’Donoghue by way of a written report which was transmitted to a Garda officer called a Collator, who was based in Tralee Garda Station. The report contained details of the convictions, former addresses and a description of James O’Donoghue and the opinion of Garda O’Connor, (a), that James O’Donoghue intended to remain “…in Ballybunion permanently as he claims he cannot go back to Dublin …” and, (b), that he would probably re-offend.
On 8th April, 1999 Garda John Keane, who was a Collator based at Tralee Garda Station, recorded the details contained in Garda O’Connor’s report in a typed document, (the Collator’s Report), which he sent to the Chief Superintendent in Tralee with a copy to the Superintendent in Listowel.
A document known as a “Collator’s Bulletin” was then issued and circulated to all of the Garda stations in the Kerry Division. This document contained all of the details relating to James O’Donoghue which had been included in Garda O’Connor’s earlier report and greater detail of the nature of and circumstances surrounding his earlier offences.
It was acknowledged by all of the relevant Garda witnesses who testified in these proceedings that the contents of, (i), the “Occurrence Book”, in the Garda Divisional Headquarters in Listowel, (ii), the Report submitted to the Collator by Garda O’Connor, (iii), the Collator’s Report and, (iv), the Collator’s Bulletin were all sensitive, confidential documents to which only members of An Garda Síochána had access.
It was also acknowledged by the Garda witnesses that members of An Garda Síochána were advised and were aware that the contents of those documents should not under any circumstances be disclosed to members of the public, members of the media or anyone other than authorised Garda officers.
5. On Sunday, 4th April 1999 Detective Garda O’Neill who was then the sole Detective Garda attached to Ballybunion Garda Station visited to the Gray family home at Marconi Avenue. He was accompanied by Detective Garda Queally who was a detective then attached to Listowel Garda Station.
Conflicting evidence was adduced in these proceedings by Francis Gray, (the third named plaintiff), and Det/Gardaí O’Neill and Queally as to what occurred during that visit. Francis Gray alleged that when he answered a knock on the door of the house Det/Garda O’Neill immediately assaulted him by standing on his foot and pushing him back into the house. He said that he was then told to leave the house whilst the Gardaí spoke to James O’Donoghue, (who was then located in the sitting room). Det/Gardaí O’Neill and Queally denied this allegation and gave a different account of what occurred.
6. Alan and Phyllis Gray had a conversation with James O’Donoghue between the 3rd April and the 6th April 1999 during which they told him that the Gardaí had spoken to them and that they wished him to return to Dublin. He agreed to do so. Consequently Mr. and Mrs. Gray drove him to Dublin on Tuesday, 6th April 1999. They returned to Ballybunion arriving at approximately 2.00 pm on Wednesday, 7th April 1999.
Immediately after their return they received a number of telephone calls from local journalists and other persons enquiring as to whether or not James O’Donoghue was resident in their home. Some journalists indicated to them that his presence there would be disclosed in the newspapers the following day.
The plaintiff’s daughter Lucy Gray who was then sixteen years received unpleasant and distressing telephone calls from her contemporaries and others. The calls related to the presence of James O’Donoghue within her home. Lucy Gray, whose evidence I accept without qualification, was affected adversely by these calls and by the fact that her friends appeared to abandon her as a result of the disclosures relating to James O’Donoghue.
The first and second named plaintiffs visited Ballybunion Garda Station and advised the Gardaí at the station that they had returned James O’Donoghue to Dublin.
Mrs. Phyllis Gray was very distressed at the prospect that local and other newspapers might disclose details of James O’Donoghue’s criminal history and the fact that he had been accommodated in the Gray family home. She became very distressed at the Garda Station and was interviewed by Sergeant McCarthy.
Sergeant McCarthy was sympathetic to her but advised her that since there was local media interest in James O’Donoghue’s presence in the area, there was a correspondingly high probability that details of his location would be published in the newspapers.
Sergeant McCarthy said that he got the impression from Mrs. Phyllis Gray that she wished to stay in Ballybunion and felt that she might be able to do so provided that details of the presence of James O’Donoghue within the Gray family home were not published in the local newspapers.
7. The North Kerry edition of The Kerryman newspaper dated Friday, April 9th, 1999 contained an article on its front page by journalist named Conor Keane. It was published and circulated on the streets of Ballybunion, (and elsewhere in Kerry), on the evening of the Wednesday, 7th April, 1999.
Mr Keane’s article was headed “Garda concern over sex pervert” and stated that the Gardaí in North Kerry were “uneasy about the presence in Ballybunion of a serial violent sex offender…who has taken up temporary residence in the resort …” The article continued:
“However, it is understood that he is expected to leave this weekend.
The Gardaí are not commenting in any way to the media about the case but the Kerryman understands that they only became aware of the man’s presence in Ballybunion as a result of routine Garda enquiries following the rape and sexual assault of two young girls in the Clondalkin area of Dublin.
The man has only recently been released from jail. Garda enquiries into the whereabouts of known sex offenders following the Clondalkin sex attacks resulted in the discovery that the repeat offender was staying in Ballybunion.”
Conor Keane, the journalist who wrote the article, testified in these proceedings. He stated that he wrote the article because he received an anonymous telephone call from a woman who claimed to be a concerned parent in Ballybunion. She told him that a serious sex offender was living in the town. Mr Keane said that he had verified the caller’s information by speaking to a number of people.
When asked if he had spoken to a member or members of An Garda Síochána he refused to answer. He stated that he could not do so because his answer might identify the source or sources of his information. He claimed that he had a duty to protect his sources at all times.
When asked if he could exclude members of the Gardaí as a source or sources of his verification he refused to do so, again claiming that he had an obligation not to disclose the source of his information.
When asked if the words which he had published stating that “Gardaí are not commenting in any way about this case” were true, he answered “Yes”.
When asked “did they ever comment to you?” He replied “I can’t answer that question”.
8. On the 8th and 9th of April, 1999 and on successive days thereafter, a series of articles appeared in local and national newspapers. Many were published under such headlines as “Get rapist out of town” and “Resident rapist feared by families”.
The plaintiff and members of their family were confronted by journalists and photographers who converged upon their home and subjected them to very unpleasant and intrusive behaviour. Newspaper accounts persisted continuously between the 9th and 16th April.
By the 12th April 1999 the plaintiffs and their family had returned to Dublin permanently.
9. For six months the plaintiffs and their family were provided with overnight “bed and breakfast” accommodation in Dublin. In consequence the plaintiffs and their five children were required to sleep in a single bedroom each night and to leave the premises no later than 10.00 am the following morning. They were permitted to return to the premises after 5.00 pm. During the intervening period they were confined to sit in their family motorcar or to walk within Dublin city. During daytime the family survived on “takeaway” meals and “fast food” restaurant facilities.
They were then accommodated for a further six months in a two-roomed apartment in North King Street. Subsequently they were provided with a Local Authority house in North Circular Road where they are now resident.
10. Phyllis Gray suffered from severe stress arising out of the events which occurred in Ballybunion in March and April of 1999. As a consequence she suffered a moderate to severe depressive syndrome, experienced intermittent suicidal ideation and made one suicide attempt as a consequence.
After initial treatment in the psychiatric section of the Mater Hospital in Dublin she was treated with anti-depressant medication. She suffered on-going symptoms for the time including a relapse which required further medication and her treating psychiatrist was of the view that “a significant emotional scar will remain which will render her vulnerable to further depressive episodes.”
She was diagnosed as suffering from Post Traumatic Stress which had reduced in intensity and had finally resolved by early 2006. She has now successfully discontinued to her medication and can be considered to have recovered from the effects of the events which occurred in Ballybunion in 1999.
11. Superintendent Michael Maher, who is the Superintendent District Officer
in Listowel, was the appropriate officer to whom enquiries from the media ought to have been directed in April 1999. Testifying in these proceedings he said that no journalist or other member of the media had contacted him in relation to the presence of James O’Donoghue in Ballybunion in 1999. He had not disclosed to any member of the media or to any unauthorised person that James O’Donoghue was resident in Ballybunion at the relevant time. He also said that he was not aware that any other member of the Garda Síochána in the Kerry area had made such a disclosure and he did not believe that they had done so.
A member of the Gardaí who disclosed to an unauthorised person information which came into his or her knowledge in the course of Garda duty, (and which was not otherwise available to members of the public), would be acting in breach of the provisions of the Garda Síochána (Discipline) Regulations 1989.
He stated that it was necessary for the Gardaí to take “sensible precautions” when they became aware that potentially dangerous sex offenders were resident in particular areas. These precautions included surveillance of the offender and constant monitoring of his behaviour and whereabouts.
He stated that it would not be appropriate for Gardaí to notify neighbouring residents of the location of convicted sex offenders. He said that this might give rise to the risk of hysteria in the area concerned and lead to “vigilantism”. Disclosure to neighbours might result in “… a bigger crime on your hands than what you were trying to prevent…”
Gardaí were concerned to ensure the safety, (a), of the offender and, (b), of the other occupants of the house where the offender was resident.
ASSAULT AND BATTERY
It is claimed that on the 4th April, 1999 Detective Gardaí O’Neill and Queally unlawfully entered the plaintiffs’ home in Marconi Avenue and assaulted and battered Francis Gray within the house. It is claimed that they also threatened James O’Donoghue with physical violence if he did not leave Ballybunion. I found the evidence of the three witnesses who were relevant to this occurrence to be unsatisfactory and inconclusive.
I accept the evidence of Mrs. Phyllis Gray that she was present in the family home and was in an upstairs bedroom when the Gardaí arrived. However she stated that she did not witness the events which were, (a), complained of by Francis Gray and, (b), denied by the two Gardaí.
Having regard to the overall quality of the evidence adduced in relation to this occurrence I am not satisfied that the plaintiffs have discharged the onus which lies upon them of proving on the evidence and on the balance of probabilities that Francis Gray was subjected to an assault or battery in his family home on the 4th April, 1999.
NEGLIGENCE
In Ward v. McMaster [1988] I.R. 337 the Supreme Court (McCarthy J.), identified the duty of care owed by public bodies to ordinary members of the public. The Court cited, (at p.347), with approval the dicta of Wilberforce L. J. in Anns v. Merton London borough [1978] AC 728, (at p 751 and 752), in which a “two stage test” was applied by the Court in relation to claims for damages for such alleged negligence. McCarthy. J. observed, (at p.349) that:
“I prefer to express the duty as arising from the proximity of the parties, the foreseeability of the damage, and the absence of any compelling exemption based upon public policy. I do not, in any fashion, seek to exclude the latter consideration, although I confess that such a consideration must be a very powerful one if it is to be used to deny an injured party his right to redress at the expense of the person or body that injured him.”
In Hanahoe v. Hussey [1998] 3 IR 69 the High Court (Kinlen J.) considered a claim that the publicity attendant upon the search of a solicitors’ offices was procured by means of a member or members of An Garda Síochána disclosing or “leaking” sensitive information to journalists, (including the fact that a warrant had been issued permitting the Gardaí to conduct a search of the plaintiffs’ premises).
The Court noted (at p. 105) that the State respondent in that case had, in their submissions, acknowledged that “disclosure emanating from careless conduct on the part of one or more Gardaí would amount to negligence under the principles set out in Ward v. McMaster [1988] I.R. 337” and endorsed that view. Finding that the plaintiffs had suffered damage by the result of the negligence of the Gardaí the Court awarded the plaintiffs damages.
The proximate relationship between the State and those of its citizens who may be affected by the by the State’s procurement of sensitive and confidential information is undeniable. That relationship can give rise to a duty of care owed by the State to persons who may be adversely affected by the disclosure or publication of such information. The negligent disclosure of sensitive and confidential information by Gardaí to journalists or other members of the media will give rise to a cause of action for damages for negligence if the disclosure results in reasonably foreseeable loss, damage or injury to a person affected by the disclosure.
In the instant case the following facts have been proved by way of evidence:
1. that the journalist Conor Keane received an anonymous telephone call from a woman who provided him with limited information indicating that a sex offender was living in Ballybunion.
2. that Mr. Keane spoke to certain persons for the purpose of verifying the information which he had received.
3. that Mr. Keane received the following detailed information from the persons to whom he spoke:
(a) confirmation that James O’Donoghue was resident in Ballybunion,
(b) information that the Gardaí “only became aware of … (James O’Donoghue’s).. presence in Ballybunion as a result of routine Garda enquires following the rape and sexual assault of two young girls in the Clondalkin area of Dublin”
(c) information that James O’Donoghue “has only recently been released from jail” and
(d) information that James O’Donoghue was “expected to leave this weekend”,
4. this was the information which formed the basis of the article which Conor Keane wrote and which was published in the North Kerry edition of The Kerryman dated Friday April 9th ,1999.
5. that the only written record of Garda enquiries undertaken arising out of a rape in Dublin in March 1999 was an entry in the “Occurrence Book” maintained in the Garda Divisional Headquarters at Listowel, in Co. Kerry and dated the 25th March, 1999.
6. that the other details concerning the criminal and other history associated with James O’Donoghue were recorded in, (i), Gda O’Connor’s Report, (ii), the “Collator’s Report”, and,(iii), the “Collator’s Bulletin”
7. that only authorised members of An Garda Síochána had access to the documents identified in 4 and 5 above and
8. that the enquiry from Garda Martin Walsh on 25th March, 1999 related to the investigation of a sexual offence in Dublin in Clondalkin on the 16th March, 1999 (confirmed by Garda Daniel O’Connor in evidence).
It has been suggested on behalf of the defendants that a local hotelier, (Mr. Quilter), or local children attending a “roller-disco” within Mr. Quilter’s premises or a prominent local County Councillor might have disclosed the relevant information to Mr. Keane. I reject that suggestion inter alia, because, at the time when Mr. Keane’s article was published, the details contained within Mr. Keane’s article were not known to Mr. Quilter or to the children who attended at his “roller-disco” or to the relevant County Councillor.
The precise information which was published in Mr. Keane’s article (and in particular the reference to “routine Garda inquiries following the rape… in the Clondalkin area of Dublin…”) was information which was only available and accessible to members of An Garda Síochána.
Mr. Keane, in evidence, refused to exclude members of An Garda Síochána as the source of the information. He sought to invoke a questionable privilege in support of his refusal.
Having regard to the facts which I have found to be proved and to Mr Keane’s refusal to exclude members of An Garda Síochána as the source of his information, I am satisfied on the evidence and on the balance of probabilities that the information and verification which gave rise to the publication of Mr. Keane’s article came from a member or members of An Garda Síochána.
This Court is acutely conscious of the dilemma facing the officers of An Garda Síochána when circumstances arise such as those which arose in this case. The presence of a dangerous convicted rapist within any community will be a genuine and legitimate source of concern for local members of An Garda Síochána. When that occurs it will be reasonable for Gardaí to take appropriate steps to ensure that such persons do not pose a risk to the public and in particular to children.
Mr. Maher S.C. on behalf of the State argued that there may be a duty upon Gardaí, in such circumstances, to warn potential victims and their family members of the presence of an offender in their neighbourhood. In support of his contention he relied upon a decision of the Ontario Court, (General Division), in the case of Doe v. The Board of Commissioners of Police for the Municipality of Metropolitan Toronto 160. D.L.R. (4th), 1998 at 697.
In that case a number of women were used as bait without their knowledge or consent in order to attract a predator whose specific identity was unknown to the police at the time but whose general identity was known. The police made the decision not to warn the intended victims. The reason for the decision was that their investigation would have been jeopardised.
The Court found that, having decided not to warn the plaintiff, the police had taken no steps to protect her although they knew her to be at risk of an almost certain attack. The Court held that the police had failed to take reasonable care for the plaintiff and had denied her the opportunity to take steps to protect herself from attack. For that reason the Court held that the police were liable to the plaintiff in damages.
The facts of the instant case are quite different. It was evident, from the evidence of Superintendent Maher, that, on the particular facts of this case, it would have been inappropriate for Gardaí to warn neighbouring residents of the presence of James O’Donoghue in Ballybunion. He stated that such a course could have resulted in the commission of serious criminal offences and should have been avoided.
He stated that, as a general principle, it is inappropriate for Gardaí to disclose the location of convicted sex offenders to journalists or to other organs of the media.
He identified what he called “reasonable precautions” which should be undertaken by the Garda Síochána in order to minimise the risk to potential victims of the proximity of offenders like James O’Donoghue. He spoke of the need for Gardaí, in such circumstances, to acquaint themselves with the offender and to place him under continuous surveillance, to monitor his movements and to make him aware of their presence.
He was at pains to stress the need for prompt and sensitive handling of information of the type which came into the possession of An Garda Síochána in relation to the presence of James O’Donoghue in Ballybunion.
I accept the evidence of Superintendent Maher on this issue. He identified a careful, sensible and appropriate policy adopted by senior officers in An Garda Síochána before 1999 which was to be applied when convicted sex offenders became resident in particular areas.
That policy could, (and should), have been successfully applied to the presence of James O’Donoghue in Ballybunion in 1999. Local Gardaí, at the relevant time, knew, or could, upon enquiry have discovered, that James O’Donoghue would be resident in the Gray family home for a very short period, (estimated to be no more than a few weeks). It was a short-term problem which should have been resolved by the application of the correct and prescribed Garda policies.
Although some steps were taken in relation to the matter which were consistent with stated Garda policy, other steps taken by a member or members of the Garda Síochána were in clear breach of Garda policy and of the provisions of the Garda Síochána, (Discipline), Regulations 1989.
Those steps were also in breach of the duty of care which the State owed to the plaintiffs not to unnecessarily expose the plaintiffs to the risk of foreseeable damage and injury resulting from the negligent disclosure of confidential information procured by and within the possession of the State.
The plaintiffs have suffered distress, upset and inconvenience as a result of the State’s negligence and the second named plaintiff, Mrs Phyllis Gray has suffered personal injury as a consequence.
It follows that the plaintiffs are entitled to recover damages from the State.
THE RIGHT TO PRIVACY
It is also claimed that since the State, through the agency of members of the Gardaí, violated the plaintiffs’ constitutionally protected right to privacy and to the peaceful enjoyment of their home, by unlawfully disclosing confidential and sensitive information to members of the media. This, it is contended, caused the plaintiffs to be subjected to abuse, harassment and intimidation of such a character that they were obliged to leave their home in Ballybunion permanently.
In Kennedy and Ors v. Ireland and the Attorney General (1987) 1 I.R. 587 the High Court, (Hamilton P.), having adopted an earlier definition of the right to privacy as “the right to be let alone” continued (at p. 592);
“the right to privacy is not an issue, the issue is the extent of that right or the extent of the right to be let alone. Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen.… It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and it is subject to the requirements of public order and morality.”
That case concerned deliberate, conscious and unjustifiable electronic eavesdropping by agents of the State upon private telephone lines used by the plaintiffs. The Court found that the plaintiffs’ rights had been violated and awarded damages.
The violation of the plaintiffs’ rights in Kennedy was clear. It was caused by deliberate and reprehensible intrusions, by agents of the State, into the private lives and conversations of the plaintiffs without justification. The intrusions included electronic interference by servants of the State who listened to the plaintiffs’ conversations, recorded them, transcribed them and made transcripts of the conversation available to other persons.
The facts of the instant case are different. It is true that the peaceful enjoyment by the plaintiffs of their home was disturbed and their privacy was invaded. It is true that they suffered harassment and intimidation and distress and inconvenience as a result of the wrongful disclosure by members of the Gardaí of confidential information about a guest within their home.
However, it is contended on behalf of the State that the plaintiffs’ right to privacy in this case was necessarily restricted by the need to vindicate the constitutional rights of others and by the requirements of the common good.
In R v. Chief Constable of the North Wales Police and Others [1999] 1 Q.B. 396, the Court of Appeal in England considered an appeal by a married couple who had been released from prison having served long sentences for the commission of sexual offences against children.
By reason of adverse publicity in the local press and angry response from neighbours they had been moved from one location to another on a number of occasions until they finally obtained accommodation in a caravan in an area where they intend to remain. A police officer who had filed a report indicating that the applicants posed a threat to large numbers of children (who frequented the caravan site during holiday periods), met with the applicants and tried to persuade them to move on.
The police request was made pursuant to advice contained within a police policy document intended to address the risk of re-offending by convicted paedophiles. The document indicated that information acquired by the police should be released on a “need to know” basis to protect potential victims. The police officer showed the owner of the caravan site material from local press relating to the applicants’ conviction and they were told by the site owner to leave the site.
They sought judicial review by way of declarations that, (a), the policy and, (b), the decision to inform the caravan owner of their convictions, were unlawful.
The Court of Appeal held inter alia, that although the convictions of the applicants had been in the public domain, the police could only publish the information if it was in the public interest to do so and that to disclose the identity of paedophiles to members of the public was a highly sensitive decision which should only be taken when there was a pressing need to do so.
However, it was held that since the police had not been motivated by any improper considerations and since it was impossible to categorise their decision as irrational, (a), the policy of the police and, (b), the decision were not unlawful.
In the instant case it has been established by way of evidence and on the balance of probabilities a member or members of An Garda Síochána negligently disclosed confidential and sensitive information to an organ of the media arising out of a request from a journalist for verification of information which was already in the possession of the journalist.
On the evidence it is unlikely that the information would have been published without the verification which was provided. In the light of the evidence of Superintendent Maher I am satisfied also that the disclosure of the information to Conor Keane cannot be excused by reason of any public policy consideration such as the need to protect the constitutional rights of others or the interests of the common good.
It follows that I am satisfied that the unlawful and negligent disclosure by a member or members of An Garda Síochána of the relevant information to Mr. Keane comprised a violation of the constitutionally protected right enjoyed by each of the plaintiffs to privacy and the peaceful enjoyment of their home.
It has been contended on behalf of the defendants that the State is not vicariously liable for the negligent or unlawful acts or omissions of members of An Garda Síochána in circumstances such as those which have given rise to these proceedings. I do not accept that contention.
The liability of the State for the tortious acts and omissions of its servants and agents is well settled. Liability can be avoided where a servant or agent is acting outside the scope of his or her employment. However, the civil wrong which has been established in this case was a wrong committed by a servant and agent of the State. The wrong was the unlawful disclosure of confidential and sensitive information procured by the State. The duty to keep that information confidential rested with the State.
The State is vicariously liable in such circumstances for the negligence of its servants and agents and for any breach by its servants and agents of the constitutionally protected rights of its citizens arising out of that negligence.
DAMAGES
The plaintiffs suffered distress, upset and inconvenience as a result of the unlawful acts of the servants and agents of the State.
The most severe upset, distress and inconvenience to which the first named plaintiff, Alan Gray was subjected occurred during the first six months after his return from Kerry to Dublin. For a subsequent six months he was similarly inconvenienced and distressed. During that time and for sometime thereafter he was affected by his wife’s illness arising out of the psychological and psychiatric damage which she suffered as a result of the events which are the subject of these proceedings. With the passage of time, the stress, anxiety, distress and inconvenience suffered by the first named plaintiff reduced and ultimately resolved.
Accordingly, the first named plaintiff Alan Gray is entitled to the sum of €15,000.00 to compensate him for the upset, distress, inconvenience and disruption of his life which resulted from the unlawful actions of the State in March and April of 1999.
I am satisfied that the third named plaintiff Francis Gray suffered a certain amount of inconvenience and upset as a result of the events of April of 1999. He sustained most disruption and inconvenience during the six months after his return from Kerry to Dublin. He is entitled to recover the sum of €5,000.00 to compensate him for that inconvenience, upset and disruption.
The second named plaintiff Phyllis Gray was the person who suffered most as a result of these events.
She suffered a moderate to severe depressive syndrome, had intermittent suicidal ideation and made a suicide attempt as a consequence. She required treatment, (including anti-depressant medication), in the psychiatric section of the Mater Hospital in Dublin. She had ongoing symptoms including a relapse which required further medication. She was rendered vulnerable to further depressive episodes arising out of Post Traumatic Stress which did not finally resolve until early 2006.
Mrs. Phyllis Gray was the “driving force” behind the decision of the Gray family to move to Kerry in 1995. I accept without qualification her evidence that she was very reluctant to permit James O’Donoghue to reside in the family home and agreed to do so only for a very short period of time. I accept also that it was her intention that she and her family should remain in Kerry permanently and that her husband had agreed to give effect to that intention.
I am satisfied on the evidence and on the balance of probabilities that by reason of what occurred in March and April of 1999 the hopes and expectations of Mrs. Phyllis Gray that she and her family could live a peaceful life in Kerry were frustrated and she was forced to return to a life which she did not wish to lead in Dublin.
On the evidence she has overcome very substantial obstacles and has adapted to her changed circumstances. However, she suffered very considerably in order to do so and overcame serious personal injuries and in particular Post Traumatic Stress and psychological injury of a severe nature.
By virtue of her own resolve she has successfully overcome her injuries. They reduced in intensity and have finally resolved over a period of more than six years.
In the light of the serious injuries sustained by Mrs. Gray and of her ongoing symptoms and having regard to the substantial inconvenience, disruption and upset which she has endured, I am satisfied that she is entitled to recover damages in the amount of €50,000.00 from the defendants.
Herrity v Associated Newspapers (Ireland) Ltd
[2008] I.E.H.C. 249 Dunne J.
JUDGMENT delivered by Ms. Justice Dunne on the 18th day of July 2008
The plaintiff in this case seeks damages for wrongful invasion and breaches by the defendant of the rights enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. Other relief arising from the same circumstances is also claimed.
The plaintiff is a married woman who was residing in Lucan in 2003. A number of articles appeared in a newspapers owned by the defendant over a three week period concerning the plaintiff. The first of the articles appeared in the edition of the 2nd November, 2003, under the headline “Husband accuses priest of dirty dealing … with his wife”. The second article appeared on the 9th November, 2003, under the headline “Wife’s nights on the town with her OTHER ‘wild’ priest”. The third article appeared on the 16th of November, 2003, under the headline “Phone lover priest quits”. A fourth article was subsequently published in 2004. It is not the subject of complaint in the pleadings herein although reference was made to it during the course of the hearing.
The articles concerned the relationship between the plaintiff and Fr. Heber McMahon, then a parish priest in Brackenstown, Swords, Co. Dublin. The first of the articles set out an account of the plaintiff’s background and a history of the marriage of the plaintiff and her husband. It described how the plaintiff and her husband came to develop a friendship with Fr. McMahon over the years. It also set out some detail as to the breakdown of the marriage between the plaintiff and the plaintiff s husband. The subheading for this article was as follows:-
“The extraordinary tapes which revealed to parishioner that ‘all priest’ star was a little too close for comfort”.
This article was accompanied by three photographs of the plaintiff, one in which she is seen with her husband and another in which she is seen with Fr. Heber McMahon. There is also a photograph of Fr. McMahon. The article was also accompanied by a transcript of a telephone conversation that took place between the plaintiff and Fr. McMahon. That transcript was introduced as follows:-
“Michelle Herrity and Fr. Heber McMahon shared intimate and frequent telephone conversations which were intercepted by a private eye working for her husband, Liam. In the first extract, the couple have a lover’s tiff, ironically sparked because the unsuspecting pair cannot work out why the phone line is bad. Bizarrely, both frequently refer to themselves in the third person as ‘your wife’ and ‘your husband’.”
The main body of the article referred to the extract from the transcript as follows:-
“Now Michelle’s furious husband has reported Fr. McMahon to the Diocese after commissioning a private eye to spy on the couple and tape their intimate telephone conversations. For weeks the private eye tailed Fr. McMahon and Michelle and caught them going on holiday to Italy together and having dinner in a plush restaurant. But the clinching evidence that their relationship was far closer than appropriate for priest and parishioner came when the investigator taped a series of conversations between the two. The extraordinary tapes which have been listened to by Ireland on Sunday, contain lurid conversations between the pair in which they talk with baby voices and call each other ‘husband’ and ‘wife’. In all, there are thirteen hours of cassettes which captured the nightly chats between the pair in which they regularly spoke of their love for each other.”
The second article referred to was published on the 9th November, 2003, and contained transcripts of parts of two conversations that the plaintiff had with a Fr. Eddie Cleary and three telephone calls she had with Fr. McMahon and a transcript of part of a telephone conversation with a female friend. The main body of the article contained references to the transcripts which were published on that date as follows:-
“Mrs. Herrity’s socialising and questionable friendship with thirty four year old Fr. Cleary is revealed in thirteen hours worth of detailed phone conversations which were taped by a private detective hired by her suspicious husband, Liam. Although the bulk of the conversations are between Mrs. Herrity and Fr. McMahon, there are references made to Fr. Cleary and chats involving the young priest and Mrs. Herrity. In one conversation, Mrs. Herrity tells a female friend how she spent more than four hours one night drinking in Bewleys Cafe on Grafton St. with a priest, who was originally from Co. Tipperary. She said: ‘I sat there and I didn’t go home until about 1.00 in the morning. I sat there and I had three glasses of wine and had a ball with him, now I really did’. Mrs. Herrity also told her shocked friend that the easy going cleric knocked back the vodka. She said: ‘I mean, he drinks vodka, he is a good drinker, you know. But I went up there and here is me thinking I am going to tell him my problems and he starts telling me all his problems. Oh I tell you, the laugh I had’.”
The final article to which reference is made in the pleadings was that headed “Phone lover priest quits”. That article did not publish any further transcripts of the plaintiff’s telephone conversations but made the following comment:-
“Mr. Herrity, who is estranged from his wife, had become so suspicious of the relationship that he hired a private detective to monitor the couple’s activities and to tape their telephone conversation. What he discovered was that Fr. McMahon and Michelle Herrity, a petite blonde, had enjoyed romantic dinners, beach strolls and even a holiday together in Italy. However, their intimate conversations provided a greater insight into just how close the couple had become. They affectionately referred to each other as ‘husband’ and ‘wife’ and repeatedly said to one another, ‘I love you’.”
The evidence of the plaintiff.
The plaintiff in the course of her evidence described her family background, education and her training to become a hairdresser. She married Liam Herrity at the age of twenty two, having known him since she was fifteen to sixteen. Originally they lived with his father in his father’s home and subsequently bought their first house in Clondalkin. They met Fr. McMahon there through a residents committee and became friendly with him. Her husband was active in local affairs. They subsequently moved to Lucan.
There were no children of the marriage. The plaintiff described her husband’s attitude to having children – apparently, he did not want to have children unless they were adopted.
The plaintiff then went on to outline her concerns as to her husband’s friendship with a young man who was employed by her husband when he was seventeen. This young man accompanied Mr. Herrity on holidays and on other activities such as golf and horse riding. The plaintiff was concerned with the amount of time her husband spent with this young man and she also had some other concerns about their relationship. She confronted him at this time and asked her husband to leave the house. Court proceedings followed and on the 8th August, 2003, a Civil Bill was issued.
The plaintiff indicated that at that point in time the relationship with Fr. McMahon was one of friendship only. Following the departure of the plaintiff’s husband from the family home her relationship with Fr. McMahon became more intimate and developed into a sexual relationship.
She gave evidence to the effect that she was the subscriber to the telephone which was in her name only. She did not give anyone permission to interfere with her telephone line. The first intimation that the plaintiff had, that her phone conversations had been taped came from a telephone call made by her husband to the plaintiff’s sister-in-law. He stated that he was going to have transcripts of phone conversations published, if she did not sign over the family home to him for a sum of €20,000. She did not believe that he had any transcripts. Subsequently, the day before the first article was published, she received a phone on her mobile phone at work. She was told that a story was about to be published about her relationship with Fr. McMahon and she was asked for a comment. She described how she dropped the phone and became hysterical. Because of her reaction to the phone call, she lost her job. She was unable to drive herself home and her brother had to collect her. She described her reaction to the publication of the article the following day and commented that the article was based on her husband’s account of the marriage breakdown. She said that it was untrue to suggest that the marriage broke down because of her involvement with Fr. McMahon and she was critical of the fact that the defendant’s newspaper made no effort to find out her side of the story apart from the brief phone call at her place of work. She outlined her reaction to the subsequent articles, she accepted that the transcript as set out were accurate but commented that they were transcripts of private conversations which were meant to be private.
She explained that she is now living with Fr. McMahon who has applied to be laicised. She said that the publication of the material knocked her confidence completely. She said she suffered from nightmares and panic attacks subsequently. In the course of cross examination she was adamant that her relationship with Fr. McMahon developed after her marriage was over and she conceded that her marriage was over before her husband moved out of the family home. She accepted that the conversations which were recorded took place in 2003 by which time she was involved with Fr. McMahon. She accepted that insofar as the newspaper article published on the 2nd November, 2003, was concerned that it was true to say that she was in a relationship with a man who was a priest.
The evidence of Fr. Heber McMahon.
Fr. McMahon in the course of his evidence said that he was still a priest in the Roma Catholic Church. He has resigned all his duties and is waiting for laicisation. He described how he came to know both of the Herrity’s. Subsequently he was transferred to Brackenstown, in Swords and the plaintiff and her husband continued as friends. Subsequently he discovered that the marriage of the plaintiff and her husband was unhappy. He suggested counselling and was anxious to help. He accepted that his concern for her ultimately led him to become unprofessional in his relationship with her. However, he stated that this post dated the break up of the marriage.
Finally he described how he became aware of the imminent publication of the first article. He was stopped at traffic lights in town when a person who identified himself as a journalist from “Ireland on Sunday” tapped on his window. There was a brief conversation during which Fr. McMahon confirmed that Mr. Herrity had made a complaint to his archbishop. There was no further contact beyond that. He then described the adverse effect of the publication on the plaintiff. He reiterated that the break up of the marriage pre-dated his relationship with the plaintiff.
In cross examination, he accepted that a complaint had been made by Mr. Herrity to the Church authorities in 2002. By November, 2003, he was engaged in an emotional and sexual relationship with the plaintiff. At that time he was still a serving parish priest and was reasonably well known. He accepted that he was in breach of his ethical code and that people would be disappointed by a priest not living up to his vows. He accepted that people would have an interest in the story. He accepted that the discussion he had with the journalist on the Saturday prior to the publication of the article was accurately reported, but he described it as a discussion and not an interview. He tendered his resignation after the article appeared.
Evidence of Raymond Casey
Mr. Casey gave evidence that he was a former member of the Gardai. He is now employed in the security business and in that capacity he was asked to visit the former family home of the plaintiff and her husband. He found evidence that a device had been placed at some stage at the point at which telephone lines entered the house. He noted that the connector attached to the phone wire could have been used to connect to a tape recorder. His conclusion was that it was clear that a device was connected to the phone line.
Evidence of Patrick Ryan
The plaintiff’s solicitor Patrick Ryan gave short evidence as to the activity of a photographer in the precincts of the court building. He saw the photographer on a number of occasions and subsequently saw the same photographer with the defendant’s team.
No evidence was tendered on behalf of the defendant.
Findings on the evidence
So far as the evidence in this case is concerned, I accept that the relationship between the plaintiff, her husband and Fr. McMahon was at the outset one of mutual friendship. Over a period of time, difficulties arose in the marriage of the plaintiff and her husband. An attempt was made to deal with these difficulties through counselling, on the recommendation of Fr. McMahon, but to no avail. It seems to me from the evidence that I heard, that the plaintiff at this time had legitimate concerns as to the nature of the relationship between her husband and the young man who was his employee and with whom he now lives.
I accept that the relationship between Fr. McMahon and the plaintiff became intimate after the marriage of the plaintiff and her husband had come to an end, although I am somewhat unclear as to whether this was before or after Mr. Herrity left the family home. I am also unclear as to precisely when Mr. Herrity did in fact leave the family home. It is clear the Circuit Court proceedings commenced in August, 2003, but as I have indicated it is not clear whether Mr. Herrity had left the family home prior to that date or not.
I also accept and there can be no doubt about this that the telephone line of the plaintiff was interfered with and that a recording device had been attached to the telephone lines. Her telephone calls were recorded without her permission. There can also be no doubt that this was done at the instigation of Mr. Herrity, apparently by a private detective employed by Mr. Herrity.
The newspaper articles of which complaint is made in these proceedings were clearly facilitated by Mr. Herrity in that he provided the transcripts and a number of photographs. The newspaper articles presented a one sided account of the break up of the marriage. It could be said that the evidence I have heard is also one-sided given that no evidence was led by the defendant but nonetheless, I am satisfied that the account given in the newspaper article was significantly less than the full story.
I accept that the plaintiff was deeply upset as a result of the publication of these articles and particularly, the publication of her private telephone conversations.
As mentioned at the outset, the plaintiff in these proceedings claims damages for breaches by the defendant of the right to privacy enjoyed by the plaintiff under the provisions of Bunreacht na hÉireann. In addition she claims damages for the wrongful infliction of mental distress, for beach of confidence, for breach of statutory duty and for conspiracy. The core of the complaints made by the plaintiff herein is an alleged breach of the provisions of s. 98 of the Postal and Telecommunications Services Act 1983, which provides:-
“(1) A person who
(a) intercepts or attempts to intercept, or
(b) authorises, suffers or permits another person to intercept, or
(c) does anything that will enable him or another person to intercept,
telecommunications messages being transmitted by the company or who discloses the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message shall be guilty of an offence. …”
Section 98(5) of the Postal and Telecommunications Act 1983 as amended by s. 13(3) of the Interception of Postal Packets and Telecommunications Messages Act 1993, provides as follows:-
“In this section ‘intercept’ means listen to, or record by any means, in the course of its transmission, a telecommunications message but does not include such listening or recording where either the person on whose behalf the message is transmitted or the person intended to receive the message has consented to the listening or recording, and cognate words shall be construed accordingly.”
The amended defence filed herein included a plea that if, which was denied, the articles complained of included content that was acknowledged in the articles to include extracts from recordings made of private telephone conversations held by the plaintiff with third a party, it was denied that such conversations were held by the plaintiff on her private telephone line as alleged. It was also further denied that the material had been obtained by a third party by means of unlawful surveillance and recording of private conversations held by the plaintiff on her telephone line. Notwithstanding these pleas, I am satisfied that there is no doubt whatsoever that the articles complained of contained material which was obtained by means of the recording of telephone conversations of the plaintiff with third parties without her knowledge or permission. To that extent it appears that there has been a breach of s. 98 of the Postal and Telecommunications Act 1983.
The Issues
The key point in this case made by the plaintiff is that the publication of the transcripts amounts to a breach of the right to privacy enjoyed by the plaintiff. It was conceded that the right to privacy is not an unqualified right and that there may be exceptional circumstances in which it is possible to justify the breach of privacy of an individual. However, it was submitted that the defendant could not attempt to claim that their actions were lawful in circumstances where the material published was obtained as a result of the commission of a serious criminal offence.
In the defence filed herein, the defendant pleaded that it acted in accordance with the right to freedom of expression, in particular in publishing material in the public interest. However, it was submitted that the articles in this case went much further than could be justified by reference to any public interest. In replies to particulars, the public interest identified by the defendant, inter alia, was that served by exposing “the conduct of members of the clergy, who hold positions of public trust”. However, it was submitted on behalf of the plaintiff that this did not justify details relating to her private life being publicised and that this went far beyond any need to publicise the conduct of Fr. McMahon. In support of this contention, particular reliance was placed on the second article published by the defendant on the 9th November, 2003, which contained transcripts of further telephone conversations of the plaintiff. In those conversations reference was made to Fr. Eddie Cleary. It was submitted that there was no justification whatsoever for publishing that material. It was submitted that the defendant did not set out to inform their reader that Fr. McMahon was having an affair with a married woman but rather they set out to use the material given by her husband to violate her privacy.
The response of the defendant to the arguments of the plaintiff in respect of the plaintiff’s claim for damages for breach of the right to privacy is to say that the authorities do not support the contention that there is a cause of action for damages for breach of privacy against a defendant other than the State. In other words damages cannot be recovered for breach of privacy against a private person or entity. Reference was made to the decision in the leading case of Kennedy v. Ireland [1987] 1 I.R. 587. It was submitted that that decision appears to refer only to State liability. It was pointed out that there is no decided case in this jurisdiction where damages have been given for breach of a right to privacy against a private person or entity. It was further pointed out that the only cases within this jurisdiction that have gone to full trial and in which the right to claim damages for breach of privacy have been recognised have been claims against the State, namely, Kennedy referred to above, Hanahoe v. Hussey [1998] 3 IR 69 and Gray v. Minister for Justice [2007] IEHC 52.
It was accepted that there have been decisions given in this jurisdiction at an interlocutory stage which have assumed that there is a cause of action in privacy against a private individual, namely, X. v. Flynn (Unreported, Costello J. 19th May, 1994), M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
Reference was also made to the English authority in the case of Wainright v. Home Office [2004] 2 AC 406, in which it has been specifically decided that there is no general common law tort of invasion of privacy.
The second point made on behalf of the defendant was that if there is a right to claim damages for breach of privacy against private persons and entities then following the reasoning of the Supreme Court in Kennedy, it can be concluded that the publication of transcripts of telephone conversations is a prima facie breach of the right to privacy if the publication was deliberate, conscious and unjustified. Therefore the question to be considered in this case is whether the prima facie breach was “unjustified”. The first point relied on in this regard is that the defendant in this case, a newspaper, was exercising its right to freedom of expression. Such a consideration was absent from the Kennedy case. It was pointed out that there is a conflict between the right of privacy on the one hand and the freedom of expression on the other hand. Reference was made in that context to the decision in Supreme Court in the case of Mahon v. Post Publications Limited [2007] 2 ILRM 1. Thus counsel argued that the defendant was entitled to publish the material concerned not simply by relying on the public interest but also having regard to the defendant’s right to freedom of expression. In other words it is not necessary to justify the publication by reference to the public interest. It was pointed out that in this regard there is no conflict between the Constitution and the European Convention on Human Rights. Although the 2003 Act, was not in force at the time of publication, it was suggested that the approach taken in the case of Mahon v. Post Publications Limited should be adopted in this case. Freedom of expression is not dependant upon being able to establish that there is any public interest in a story.
The second point made on behalf of the defendant is that the central allegation in the articles complained of is true. There is no challenge to the accuracy of the material published. It was submitted that this was a decisive factor in an analogous case namely, Maguire v. Drury [1995] 1 I.L.R.M. 108.
The next point relied on by the defendant was the public interest. It was pointed out that Fr. McMahon was a Catholic priest and as such required to be celibate. It was also submitted that a Catholic priest, particularly one who serves as a parish priest, is a public figure. It was argued that if such a priest is not celibate or if his private behaviour is not in accordance with the norms advocated by the Church, then that is a matter of public interest. Reliance was placed on the decision of the Court of Appeal in the United Kingdom in the case of A. v. B. Plc [2003] QB 195.
The final matter relied on by the defendant was the fact that the information published came from the plaintiffs husband and it was submitted that his rights to freedom of expression had to taken into consideration. In support of this contention reliance was placed on the decision in A. v. B. Plc referred to above and on a passage at para. I l(xi) where it was stated:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
On the basis of that decision it was contended that if it was relevant in that case to consider that one of the parties to a non-marital relationship wished to give information to the newspapers it was all the more so a consideration where the information came from a party to a marriage.
Relying on those considerations, it was submitted that the publication was justified.
The Right to Privacy
The right to privacy is an unenumerated right under the Constitution which has its genesis in a short series of cases commencing with the decision in McGee v. Attorney General [1974] IR 284. That well known case concerned the provisions of s. 17 of the Criminal Law (Amendment) Act 1935, which restricted the availability of contraceptives. Section 17(3) was struck down as being inconsistent with the Constitution as it was an unjustified invasion of the plaintiffs personal right to privacy in her marital affairs. At p. 313 of his judgment, Walsh J. commented:-
“In my view, Article 41 of the Constitution guarantees the husband and wife against any such invasion of their privacy by the State. It follows that the use of contraceptives by them within that marital privacy is equally guaranteed against such invasion and, as such, assumes the status of a right so guaranteed by the Constitution. If this right cannot be directly invaded by the State it follows that it cannot be frustrated by the State taking measures to ensure that the exercise of that right is rendered impossible.”
Henchy J. at p. 308 in the same judgment said:-
“In my opinion, s. 17 of the Act of 1935 violates the guarantee in
s. 3(1) of Article 40 by the State to protect the plaintiff s personal rights by its laws; it does so not only by violating her personal right to privacy in regard to her marital relations but, in a wider way, by frustrating and making criminal any efforts by her to effectuate the decision of her husband and herself, made responsibly, conscientiously and on medical advice, to avail themselves of a particular contraceptive method so as to ensure her life and health as well as the integrity, security and well-being of her marriage and her family. Because of the clear unconstitutionality of the section in this respect, I do not find it necessary to deal with the submissions made in support of the claim that the section violates other provisions of the Constitution.”
Griffin J. also referred to the concept of marital privacy as one of the personal rights guaranteed by s. 3(1) of Article 40 at p. 333 of the judgment.
Thus it was for the first time that the right to privacy in any context was recognised as one of the unenumerated rights under the Constitution.
The next case to consider the right of privacy in this extent was the case of Norris v. Attorney General [1984] IR 36. That case considered the constitutionality of laws criminalising homosexual acts between males. In that case the question of the right to privacy was considered, but the majority of the Supreme Court took a restrictive view of the extent of the right of privacy. In the course of his judgment in that case, O’Higginc C.J. noted at p. 64 a right of privacy or, as it has been put, a right “to be let alone”, can never be absolute.
The genesis of the right to privacy culminated in the case of Kennedy v. Ireland [1987] 1 I.R. 587. The decision of the High Court in that case expressly recognised that there is a constitutional right to privacy. That case involved unlawful tapping of the plaintiff s telephone lines. The plaintiff claimed that this was a breach of their personal right to privacy and freedom from unlawful and unwarranted intrusion, guaranteed by Article 40 of the Constitution. In the course of his judgment, Hamilton P. stated at p.590:-
“The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] IR 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated: –
‘The Constitution does not guarantee or, in any way, expressly refer to a right of privacy – no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment (Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments (Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights (Griswold v. Connecticut (1965) 381 U.S. 479) – the contraceptives case; in the Ninth Amendment (Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment (Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1(4) – the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions – all conferred by Article 40, s. 6(1); the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] IR 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, s. 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld – the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences – a greater awareness of the need for the enunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts; and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation – thus playing its part in ‘seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .’ as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the United States Federal Supreme Court ‘the right to be let alone’ – a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 EHRR 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.’”
Having quoted at length the passage from the judgement of McCarthy J. in Norris, Hamilton J. at p. 592 then continued:-
“Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] IR 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.”
Mr. McCullagh, S.C. on behalf of the defendant did not dispute the existence of a right to privacy but contended that there was no right to sue a private entity or person for damages for such a breach. He relied on the language of Hamilton P. and in particular the last paragraph of the passage just quoted above to suggest that the liability in respect of damages is limited to the State. He accepted that the right to sue an individual or entity had been assumed in a number of cases but added that such assumption had been made in cases involving interlocutory applications only and not in cases that had gone to full trial. Any case in which the matter was raised and in which the right to claim damages for breach of privacy have been recognised were actions against the State.
During the course of legal argument herein, reference was made to the case of Meskell v. C.I.E. [1973] I.R. 121 by Mr. McDowell, S.C. in support of the plaintiffs contention that a claim for damages for breach of a constitutional right was not limited to actions against the State. The case of Conway v. I.N.TO. [1991] 2 I.R. 305 was also referred to in this context.
It is interesting to note that in the Kennedy case referred to above, Hamilton P. expressly referred to the decision in Meskell at p.593 of his judgement. He quoted from the words of Walsh J. during the course of his judgment in that case where he stated at pp. 132 and 133:-
“A right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
Hamilton P. in the course of the Kennedy judgment having referred to the passage referred to above from Meskell, went on to say as follows:-
“In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.”
I should refer briefly to the decisions referred to by Mr. McCullough, in support of his argument that there is no single decision arising out of the hearing at full trial of a claim for damages for breach of privacy against a private person or entity. The two cases relied on in particular in this regard are the decisions in M. v. Drury [1994] 2 I.R. 8 and Cogley v. R.T.E. [2005] 2 I.L.R.M. 529.
The facts of M. v. Drury referred to above are strikingly familiar to the facts of the present case. The plaintiff wife and the husband had been involved in family law litigation which resulted in an order for judicial separation being made on the 26th July, 1993. A number of articles appeared in different newspapers published by the defendants reporting the husband’s view that the marriage had broken down by reason of an alleged adulterous relationship between his wife and a Roman Catholic priest, and his intention to bring proceedings against the Roman Catholic Church seeking compensation for the breakdown of his marriage. The plaintiff applied to the High Court for inter alia, an interlocutory injunction restraining the defendants from publishing or communicating to any person any matter or fact, pertaining to her family life. It was submitted on behalf of the plaintiff that since the proposed publications would disclose matters relating to the intimate family relationship of the plaintiff and the defendant, they constituted an invasions of the plaintiff’s right to privacy which right was an unspecified right deriving from the Constitution of Ireland, 1937, and in particular, Article 41 thereof. It was held, by O’Hanlon J. that the proposed publications complained of did not concern the intimacies of married life or marital communications between husband and wife but, allegations of adultery made by a husband against a wife. Accordingly, having regard to the provisions of Article 40 and Article 41 of the Constitution, there was no fair case to be tried as to whether some right of the plaintiff derived from those Articles would be breached by publication of the proposed material. It was also noted by the Court that had the truth of the allegations been contested by the plaintiff, the injunction could have been granted and the law of defamation could have been invoked in aid of the plaintiff’s claim. The court went on to hold that whilst in certain cases the right to privacy, which right was an unspecified right deriving from the Constitution, demanded an intervention of the courts, in general it was desirable that the legislature and not the courts should prescribe the exceptions to the right of freedom of speech. It was also held that having regard to the fact that the husband’s allegations had already been widely aired in the press and to the general undesirability of delaying the publication of material in circumstances where it was likely that the courts would determine that such publication was lawful at the trial of the action, the balance of convenience was against granting the reliefs sought. It is interesting to look at precisely what was said by O’Hanlon J. in the course of his judgment. At p. 14, he commented:-
“It appears to me, however, that what is involved in this case is not a matter concerning the intimacies of married life, or marital communication between husband and wife but rather a matter of allegations made by a husband of an extra-marital liaison entered into by his wife which he was anxious to publicise for the purpose of giving vent to his anger against the third party involved and possibly to reap some financial reward for himself in the process.
If the truth of the allegations were seriously challenged, the courts would certainly intervene in an appropriate case to prevent publication pending trial and the law of libel could be invoked in aid of the plaintiff’s claim. Similarly, in case of a breach of the in-camera rule, as happened in Re Kennedy & McCann [1976] I.R. 382, injunctive relief could be obtained under various statutes dealing with family law matters.
I cannot derive from the provisions of Article 40 or Article 41 of the Constitution any grounds which lead me to believe that there is a fair case to be tried as to whether some right of the plaintiff under those Articles would be breached if further revelations of the kind which have already appeared in print are repeated in the future in the publications of the various defendants or for which they are responsible as distributors or correspondents or otherwise.”
He went on to say at p. 17:-
“There are extreme cases where the right to privacy (which is recognised as one of the personal rights, though unspecified, guaranteed protection by the Constitution – see judgment of Budd J. in McGee v. Attorney General [1974] IR 284 at p. 322) may demand the intervention of the courts. An example might be the circumstances illustrated in Argyle v. Argyle [1967] Ch. 302, where confidential communications between husband and wife during their married life together, were protected against disclosure. Generally speaking, however, it seems desirable that it should be left to the legislature and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).
In the present case, the Court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publications is sure to cause, the children of the marriage were all minors. This would represent a new departure in our law, for which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular to the strongly expressed guarantees in favour of freedom of expression in that document.”
He went on to deal with the balance of convenience, if it arose, in that case and he noted that there seemed to be little to be gained by granting an interlocutory injunction as maximum publicity had already been given to the husband’s version of events. It seems to me that that case is important for a number of reasons. First of all, it recognises the existence of a right to privacy as one of the personal rights guaranteed protection by the Constitution. Secondly, it does recognise the importance of protecting confidential communications between a husband and wife during their married life together. (Despite the fact that the articles concerned in this case deal with the marital circumstances of the husband and wife, it is clearly not a case in which confidential communications between a husband and wife during their married life together have been disclosed.) The third point that is important to note is the comment of O’Hanlon J. to the effect that it was desirable that it should be left to the legislature and not to the courts to “stake out the exceptions to freedom of speech”. I will return to this point later.
The other case I wish to refer to in this context is the judgment in the case of Cogley v. R.T.E. [2005] 2 I.L.R.M. 529. That case concerned an intended broadcast of a programme in relation to the operation of a nursing home known as Leas Cross Nursing Home. Two sets of proceedings were brought against RTE seeking to prevent the broadcast of the programme. The plaintiff in the first set of proceedings was a Director of Nursing at the nursing hone and the plaintiffs in the second set of proceedings were the owners and occupiers of the nursing home. Using a concealed camera, a worker filmed the operation of the nursing home over a two week period. The plaintiffs in the second proceedings based their application primarily on the allegation that the use of a secret camera was a breach of the right to privacy of the plaintiffs and the patients at the nursing home and constituted trespass. In considering the extent of the constitutional right to privacy as set out in Kennedy v. Ireland, Clarke J. noted at p. 90:-
“However, it is also clear from Kennedy v. Ireland [1987] I.R. 587 that the right to privacy is not an unqualified right but is subject to the constitutional rights of others and to the requirements of public order, public morality and the common good. It should also be noted that the express recognition of an obligation to respect the privacy of others contained in the Broadcasting Acts 1960 to 1976 referred to above is also not unqualified in that it places an obligation on the Broadcasting authority not to ‘unreasonably encroach’ on the privacy of an individual. Thus it is clear that while persons such as the plaintiffs have a constitutional right to privacy and an arguable entitlement to ensure that the Broadcasting Authority does not unreasonably interfere with their privacy in the course of making and broadcasting programmes, those rights are not unqualified. It is, therefore, necessary to address how the right of privacy may be balanced against other competing rights and, in particular, how an assessment of the situation in respect of such competing rights should be made at an interlocutory stage such as this.”
Clarke J. went on to comment as follows:
“A useful starting point for the purposes of this case seems to me to be to distinguish between a right of privacy in the underlying information whose disclosure it is sought. to prevent, on the one hand. and, on the other hand, the situation where a right to privacy which does not extend to that underlying information but it is contented that the methods by which the information has been obtained amount to a breach of privacy.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors which may be involved, such as the public interest, be able to maintain that the information must always be kept private but may make a complaint in relation to the manner in which the information was obtained.
It seems to me the different considerations apply most particularly at an interlocutory stage, dependant on which of the above elements of the right to privacy is involved.”
Ultimately in that case the court went on to refuse the interlocutory relief sought. Clarke J. did comment (at p. 93) that the plaintiffs had at least made out an arguable case to the effect that the circumstances in which the filming occurred may amount, prima facie, to a trespass and breach of privacy. However, he went on to hold that the mere fact that information may arguably have been obtained in breach of an individual’s rights is not of itself necessarily decisive. He pointed out the importance of weighing in the balance any public interest issues which arise and given that he was dealing with an interlocutory application, the extent to which damages may be an adequate remedy. I find it difficult to draw the conclusion from the decision in that case or indeed from the decision in M. v. Drury referred to above that because the plaintiffs in those cases failed to obtain the interlocutory relief sought, and bearing in mind that there has not been a decision arising out of a full trial of a claim for damages for breach of privacy against a private person or entity, that no such right exists. What does emerge from the decisions to which I have referred and in particular from the decision in the case of Cogley v. R.T.E. are the following principles:-
(1) There is a Constitutional right to privacy.
(2) The right to privacy is not an unqualified right.
(3) The right to privacy may have to be balanced against other competing rights or interests.
(4) The right to privacy may be derived from the nature of the information at issue – that is, matters which are entirely private to an individual and which it may be validly contended that there is no proper basis for the disclosure either to third parties or to the public generally.
(5) There may be circumstances in which an individual may not be able to maintain that the information concerned must always be kept private, having regard to the competing interests which may be involved but may make complaint in relation to the manner in which the information was obtained.
(6) The right to sue for damages for breach of the constitutional right to privacy is not confined to actions against the State or State bodies or institutions.
Application of the principles to the facts of this case
Given that I have reached the conclusion that a breach of the constitutional right to privacy is actionable against a private person or entity, it is now necessary to consider in the context of this case whether the matters published by the defendant herein amount to a breach of privacy and the extent to which the right to privacy asserted by the plaintiff herein may be qualified. It was accepted in this case on behalf of the defendant that if there is a right to claim damages for breach of privacy against private individuals, then that right must follow the reasoning of the Supreme Court in Kennedy. On that basis it was accepted that the publication of transcripts of telephone conversations is a prima facie breach of that right if it was deliberate, conscious and unjustified. On that basis it was submitted that the question to be determined is whether the prima facie breach of the right to privacy was “unjustified”.
The defendant relied on a number of matters to justify the publication of the articles complained of herein. Those can be summarised as follows:-
(1) The newspapers’ right to freedom of expression.
(2) The accuracy of the information involved.
(3) The public interest in the information.
(4) The freedom of expression of the plaintiff s husband.
In support of those matters, the defendant relied on a number of authorities. Dealing with those issues as they arose, counsel on behalf of the defendant noted that the question of freedom of expression was not something that arose in the Kennedy case. Reference was made to the judgment of the Supreme Court in Mahon v. Post Publication Limited [2007] 2 ILRM 1 in which Fennelly J. considered the nature of freedom of expression at page 13 and 14 of the judgment:-
“It is no function of the Court to adjudicate on the dispute agitated in the affidavits as to whether future publication by the media of material regarded as confidential by the Tribunal would be in the public interest, as the defendant claims, or would be aimed at boosting circulation, as Ms Gribbin has stated on behalf of the Tribunal. The courts do not pass judgment on whether any particular exercise of the right of freedom of expression is in the public interest. The media are not required to justify publication by reference to any public interest other than that of freedom of expression itself. They are free to publish material which is not in the public interest. I have no doubt that much of the material which appears in the news media serves no public interest whatever. I have equally no doubt that much of it is motivated, and perfectly permissibly so, by the pursuit of profit. Publication may indeed be prompted by less noble motives. So far as the facts of the present case are concerned, the decision of Mr O’Kelly to publish the names of three TD’s in direct defiance of the wishes of the Tribunal was disgraceful and served no identifiable public interest. On the other hand, that does not mean that it was unlawful.
The right of freedom of expression extends the same protection to worthless, prurient and meretricious publication as it does to worthy, serious and socially valuable works. The undoubted fact that news media frequently and implausibly invoke the public interest to cloak worthless and even offensive material does not affect the principle. Like Kelly J, I cite the following passage from the judgment of Hoffmann L.J., as he then was, in R. v Central Independent Television Plc [1994] 3 WLR 20:
‘Newspapers are sometimes irresponsible and their motives in a market economy cannot be expected to be unalloyed by considerations of commercial advantage. Publication may cause needless pain, distress and damage to individuals or harm to other aspects of the public interest. But a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.’”
That is a powerful expression of the right to freedom of expression. It is not authority however for saying that the right to freedom of expression is more significant than the right to privacy. As Hoffmann L.J. noted, the freedom is subject to clearly defined exceptions laid down by common law or statute. It is in that context that the constitutional right to privacy comes into the equation. Accordingly it seems to me that there is a balancing exercise engaged in circumstances where the right to freedom of expression conflicts with the right to privacy. It is clear that newspapers are free to publish all sorts of matters regardless of public interest and questions of good taste but, as is the case with the right to privacy, the right to freedom of expression is not an unqualified right. Lord Hoffmann in the passage just quoted above and approved by Fennelly J. noted:-
“This freedom is subject only to clearly defined exceptions laid down by common law or statute.
O’Hanlon J. in the case of M. v. Drury referred to above, quoted the same passage from the judgment of Hoffmann L.J. and he added at page 17 of his
judgment:-
“Generally speaking, however, it seems desirable that it should be left to the legislature, and not to the courts to ‘stake out the exceptions to freedom of speech’ (in the words of Lord Denning).”
Clarke J. in his judgment in Cogley referred to the fact that:
“There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
It seems to me that those passages have a particular bearing in the context of this case. The publication of the telephone transcripts in this case were obtained in breach of the provisions of s. 98 of the Postal and Telecommunications Services Act, 1983. As previously indicated, s. 98(1) applies to a person who not only intercepts or attempts to intercept or authorises someone else to intercept telecommunications messages but also applies to those who disclose the existence, substance or purport of any such message which has been intercepted or uses for any purpose any information obtained from any such message and such person is also guilty of an offence. I cannot see how anyone can assert a right to freedom of expression to publish transcripts of private telephone conversations where the legislature has expressly prohibited the interception of telecommunications messages. This is precisely a situation in which the State has seen fit to lay down by statute an exception to the right to freedom of expression. There is a hierarchy of constitutional rights and as a general proposition, I think that cases in which the right to privacy will prevail over the right to freedom of expression may well be far and few between. However, this may not always be the case and there are circumstances where it seems to me the right to privacy could be such that it would prevail over the right to freedom of expression. One of those circumstances arises on the facts of this case where the freedom of expression asserted is the publication of material obtained unlawfully. One must bear in mind that the provisions of s. 98 of the Act are there to protect the privacy of an individual’s telephone conversations. No one expects to see their private telephone conversations printed in a newspaper to excite the prurient curiosity or to provide amusement for the paper’s readers.
There may be other circumstances where the right to privacy prevails. For example, could a newspaper be entitled to publish details of a diagnosis of serious illness in respect of an individual bearing in mind the nature of the confidential doctor-patient relationships? What if the individual was a well-known public figure? Would it make a difference if the individual was a celebrity or, say, a senior politician? I would have thought that the circumstances which could justify a publication of such private information would seldom arise and only if there was some clear, demonstrable public interest.
The second aspect of the matter relied on by the defendant herein related to the accuracy of the information. Undoubtedly that was a factor in the case of M. v. Drury referred to above. The facts of that case are, as mentioned previously, very similar to the facts of this case. In that context, O’Hanlon J. stated at page 17:-
“In the present case, the court is asked to intervene to restrain the publication of material, the truth of which has not as yet been disputed, in order to save from the distress that such publication is sure to cause the children of the marriage who are all minors. This would represent a new departure in our law, from which, in my opinion, no precedent has been shown, and for which I can find no basis in the Irish Constitution, having regard, in particular, to the strongly-expressed guarantees in favour of freedom of expression in that document.
I therefore do not find that it has been shown that there is a fair case to argue when the case comes on for full trial, an on this ground I refuse the application for interlocutory relief.”
The fact that the material is accurate does not of itself give rise to a right to publish the material. As I have noted above the right to freedom of expression is subject to exceptions at common law and subject to statutory restriction. The fact that the material is accurate would not in my view avail the defendant in this case where the material at issue is disclosed contrary to a statutory exception to the right to freedom of expression.
The third point relied on by the defendant is the public interest. In essence the submission of the defendant was that the information that appeared in the articles complained of concerned a Catholic priest. It was submitted that the Catholic Church demands celibacy of its priests and that a Catholic priest and in particular a parish priest is a public figure. On that basis it was contended that there was a legitimate public interest in whether a parish priest is having an affair with a married woman. In this context reference was made to the decision in the case of A. v. B. Plc [2003] QB 195 where the Court of Appeal noted:-
“Conduct which in the case of a private individual would not be the appropriate subject of comment can be the proper subject of comment in the case of a public figure. The public figure may hold a position where higher standards of conduct can be rightly expected by the public. The public figure may be a role model whose conduct could well be emulated by others. He may set the fashion. The higher the profile of the individual concerned the more likely that this will be the position. Whether you have courted publicity or not you may be a legitimate subject of public attention. If you have courted public attention then you have less ground to object to the intrusion that follows. In many of these situations it would be overstating the position to say that there is a public interest in the information being published. It would be more accurate to say that the public have an understandable and so a legitimate interest in being told the information. If this is the situation then it can be appropriately taken into account by a court when deciding on which side of the line a case falls. The courts must not ignore the fact that if newspapers do not publish information which the public are interested in, there will be fewer newspapers published, which will not be in the public interest.”
I would make a number of observations about this line of argument. First of all the public interest in this particular case, such as it may be, is asserted to be a public interest in the behaviour of Fr. McMahon, who is of course, not the plaintiff herein. Much of the material that appeared in the course of these three articles concerned the plaintiff. Given the nature of the role of a Catholic priest in Irish society, Fr. McMahon could well be said to be a person whose conduct may be subject to public scrutiny as outlined in the case of A. v. B. referred to above. It is inevitable that if information is disclosed about a public figure such as a priest, that could expose others in the position of the plaintiff herein to unwelcome intrusion into their lives. In such circumstances I think that as a general proposition the right to freedom of expression would outweigh the right to privacy of the individual in the position of the plaintiff herein. However, in considering that aspect of the matter one would also have to have regard to the extent of the information in relation to the individual concerned and once again, one would have to have regard to the means by which the information was obtained and the type of disclosure that occurred. Accepting as I do that there is such a public interest of the kind contended for by the defendant, nonetheless, that public interest remains subject to the caveat that the limits on the right to freedom of expression cannot be ignored simply by recourse to the public interest. In other words, the right to freedom of expression is as stated before, not an unqualified right. It is subject to exceptions at common law, for example, by means of defamation law (if the publication is not accurate) and by legislation. I can see no basis for saying that the public interest arising on the facts of this case could be such as to set at nought the restriction on the disclosure of telecommunications messages prohibited by s. 98 of the Postal and Telecommunications Services Act 1983. It simply cannot be so.
The final point raised relates to the right to freedom of expression of the plaintiff s husband. In the case of A. v. B. Plc. referred to above, it was noted by the court as follows:-
“More difficult is the situation where the alleged intrusion into privacy is as a result of the reporting of the information to a third party by a party to the relationship which creates the privacy. This is a material factor in situations where two people have shared a sexual relationship outside marriage. If one wishes to exercise his or her article 10 rights that must impact on the other’s right to maintain confidentiality. For example the information may relate, as in this case, to a situation where there is a sexual relationship between two parties and one of the parties informs the media about the relationship without the consent of the other party. … While recognising the special status of a lawful marriage under our law, the courts, for present purposes, have to recognise and give appropriate weight to the extensive range of relationships which now exist. Obviously, the more stable the relationship the greater will be the significance which is attached to it.”
Thus it was submitted that where the information comes from a party to a marriage this is a relevant fact to consider in circumstances where one of the parties to the marriage wishes to give information to newspapers. That passage recognises the difficulty that is to some extent at the heart of this case, namely that one person’s right to privacy or as stated in that case to maintain confidentiality, must impact on the other’s right to freedom of expression. In such situations one has to weigh up the conflicting interests and find where the balance lies. However, for the reasons I have already outlined, such considerations do not arise where the material comes from a source which is prohibited by law as in this case, namely, telephone tapping.
Accordingly, I am satisfied that the publication of the transcripts of telephone conversations in this particular case by the defendant in breach of s. 98 of the 1983 Act, can only be described as a deliberate, conscious and unjustified breach of the plaintiff’s right to privacy.
Other issues
During the course of submissions in this case, Mr. McDowell, S.C. on behalf of the plaintiff in the course of submissions made the comment that there was no real significant or weighty public interest involved in these proceedings in the publication of private information pertaining to the plaintiff s private life. It was stated that the argument of the defendant could have carried some weight had the defendant limited its publication to details about Fr. McMahon and Fr. Cleary. He went on to say that the exposure of the plaintiff s private life without any basis in public interest and was designed purely to create a salacious and prurient article. As I have already indicated, I can see some basis for the identification of the plaintiff as a person involved in a relationship with Fr. McMahon. However, much of the material published in the articles and concerning the plaintiff could not have any bearing on the public interest asserted by the defendant. In any event much of the material published consisted of the contents of transcripts of private telephone conversations of the plaintiff. For the reasons outlined above there could be no basis for the publication of that material.
Submissions were made to me in relation to the right to privacy as protected under the European Convention of Human Rights. The publication in this case occurred before the European Convention on Human Rights Act 2003, came into effect on the 31st December, 2003. It was noted in the course of submissions that the right to freedom of expression under the Constitution were in accordance with the provisions of the European Convention on Human Rights, and it does not seem to me to be necessary to make any observation on the provisions of the Convention.
Submissions were also made in relation to a contention that the publication of the material in this case amounted to a breach of confidence. It does not seem to me to be necessary to deal with this issue in the light of the findings expressed above.
Further it was contended that the publication by the defendant of the telephone conversations amounted to a breach of statutory duty giving rise to a claim for damages. Again I do not think it is necessary to consider this aspect of the matter.
The final matter raised by way of argument was that there was a conspiracy on the part of the defendant and others in relation to the publication of the transcripts of the plaintiff s private telephone conversations for the purpose of injuring the plaintiff. Again I do not think it is necessary to consider this aspect of the case in the light of the views expressed in relation to the plaintiff s claim for damages for breach of her right to privacy.
Damages
The final issue to be considered in this case is the issue of damages. The first comment I want to make in relation to the question of damages is that I accept the evidence given by the plaintiff in this case. In that regard I accept that the marriage of the plaintiff and her husband had broken up before her relationship with Fr. McMahon commenced. I accept that there was no real effort made by the defendant to get the plaintiff’s side of the story in relation to the breakdown of the marriage. I accept that what appeared in the newspaper articles complained of was an account based solely on her husband’s version of events. There was a phone call made to the plaintiff on the day before the publication of the first of the articles complained of, but I cannot accept that it was a genuine attempt to obtain her side of the story. In any event, that would not justify a breach of a right to privacy. I accept that while she was asked about her relationship with Fr. McMahon in the phone call that took place, she was never asked anything about her friendship with Fr. Eddie Cleary or the circumstances in which that friendship came about. Finally I accept that the plaintiff was very distressed as a result of the publication of these articles exposing, as they did, to public scrutiny transcripts of her private telephone conversations.
Counsel on behalf of the plaintiff in the submissions in respect of damages referred to the decision of the Supreme Court in the case of Shortt v. Commissioner of An Garda Síochána [2007] IESC 9, in which the law in respect of damages in tort or for breach of a constitutional right were considered. It was stated by Murray C.J. as follows:-
“In these circumstances I am quite satisfied that the principles relating to the award of damages in tort or for breach of a constitutional right as set out by Finlay C.J. in Conway v. Irish National Teachers Organisation [1991] 2 I.R. 305 at 317 are applicable to the assessment of damages in this case …
In Conway v. I.N.T.O. Finlay C. J. stated:-
‘In respect of damages in tort or for breach of a constitutional right, three headings of damages in Irish law are, in my view, potentially relevant to any particular case. They are:-
1. Ordinary compensatory damages being sums calculated to recompense a wronged plaintiff for physical injury, mental distress, anxiety, deprivation of convenience, or other harmful effects of a wrongful act and/or for monies lost or to be lost and/or expenses incurred or to be incurred by reason of the commission of the wrongful act.
2. Aggravated damages, being compensatory damages increased by reason of
(a) the manner in which the wrong was committed, involving such elements as oppressiveness, arrogance or outrage, or
(b) the conduct of the wrongdoer after the commission of the wrong, such as a refusal to apologise or to ameliorate the harm done or the making of threats to
repeat the wrong, or
(c) conduct of the wrongdoer and/or his representatives in the defence of the claim of the wronged plaintiff, up to and including the trial of the action.
Such a list of the circumstances which may aggravate compensatory damages until they can properly be classified as aggravated damages is not intended to be in any way finite or complete. Furthermore, the circumstances which may properly form an aggravating feature in the measurement of compensatory damages must, in many instances, be in part a recognition of the added hurt or insult to a plaintiff who has been wronged, and in part also a recognition of the cavalier or outrageous conduct of the defendant.
3. Punitive or exemplary damages arising from the nature of the wrong which has been committed and/or the manner of its commission which are intended to mark the court’s particular disapproval of the defendant’s conduct in all the circumstances of the case and its decision that it should publicly be seen to have punished the defendant for such conduct by awarding such damages, quite apart from its obligation, where it may exist in the same case, to compensate the plaintiff for the damage which he or she has suffered. I have purposely used the above phrase ‘punitive or exemplary damages’ because I am forced to the conclusion that, notwithstanding relatively cogent reasons to the contrary, in our law punitive and exemplary damages must be recognised as constituting the same element.”
Bearing in mind those principles, it seems to me that the plaintiff herein is entitled to compensatory damages and I am also satisfied that she is entitled to aggravated damages. I am also satisfied that this is a case in which punitive damages should be awarded. I propose to deal with the issue of ordinary compensatory damages and aggravated damages together. In this regard I accept the evidence of the plaintiff that she was very distressed as a result of the flagrant and unwarranted breach by the defendant of the plaintiff s right to privacy. The publications at the heart of this case took place over a three week period designed to extract the maximum value out of the telephone transcripts of the plaintiff s conversations. Use was made of family photographs and information as to the plaintiff s family circumstances, history and background which could have had no bearing whatsoever on the public interest asserted by the defendant herein. However, the most serious aspect of this case was the use by the defendant of material obtained unlawfully as a result of an illegal phone tap, which was in turn, obtained by the defendant from a husband motivated by revenge. Balanced against that must be the fact that it seems to me that some limited information as to the plaintiff could have been legitimately brought into the public domain had the defendant chosen to write about the conduct of Fr. McMahon, in embarking on a relationship with the plaintiff. Unfortunately for the defendant, it chose to go beyond what would have been permissible in the exercise of its right to freedom of expression by making use of material obtained unlawfully. In this context, the passage from the judgement of Clarke J. in his judgement in Cogley at p. 539 is particularly apposite to the facts of this case:-
“In my view a useful starting point for the purposes of this case seems to me to be to distinguish between a right to privacy in the underlying information whose disclosure it is sought to prevent on the one hand and a right to privacy which does not extend to that underlying information but where it is contended that the methods by which the information has been obtained amount to a breach of privacy on the other hand.
There are certain matters which are entirely private to an individual and where it may validly be contended that no proper basis for their disclosure either to third parties or to the public generally exists. There may be other circumstances where the individual concerned might not, having regard to competing factors, such as the public interest, which may be involved, be able to maintain that the information concerned must always be kept private but may make complaint in relation to the manner in which the information was obtained.”
I should briefly add that complaint was made during the course of this case about the conduct of the defendant in the course of the trial of this action. Complaint was made as to the presence of a photographer and the conduct of the same photographer during the course of this trial. It appears that the photographer was seen in the company of the defendant’s representatives during the course of the trial. While that matter was ventilated in court, it does seem to me that one of the consequences of engaging in litigation is that parties will necessarily be subjected to the sometimes unwelcome attention of photographers. This is one of the modern day incidents of litigation and does not in my view amount to an element which could or should result in aggravated damages in the circumstances of this case.
Bearing in mind the facts and circumstances of this case, I am assessing ordinary and aggravated compensatory damages in the sum of €60,000 for the conscious and deliberate and unjustified breach of the plaintiff’s right to privacy and the undoubted and significant distress caused to the plaintiff as a result of that breach. The blatant use of unlawfully obtained transcripts of telephone conversations is such that it seems to me that it could not be condoned in any way whatsoever. The behaviour of the defendant in making use of such material is, in my view, nothing short of outrageous. It will be seldom that a court will award punitive or exemplary damages. However, bearing in mind the comments of Finlay C.J. in the case of Conway referred to above, it seems to me that this is one of the rare occasions when the court’s disapproval of the defendant’s conduct in all the circumstances of the case should be marked by awarding such damages. In all the circumstances of this case it seems to me that the appropriate sum to award in respect of punitive damages for the conduct of the defendant in making use of transcripts of telephone conversations obtained unlawfully is the sum of €30,000.
Accordingly, there will be a decree in favour of the plaintiff in the sum of €90,000.