Judgement 64371/16 64407/16

Applicant type Natural person
Number of applicants 2
Country UK
Application no. 64371/16 64407/16
Date 12/09/2023
Judges Gabriele Kucsko-Stadlmayer, President,
 Tim Eicke,
 Faris Vehabović,
 Branko Lubarda,
 Anja Seibert-Fohr,
 Ana Maria Guerra Martins,
 Anne Louise Bormann,
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason See Big Brother Watch
Type of privacy Informational privacy
Keywords Victim status; ratione loci; mass surveillance
Facts of the caseThe principal issue to be addressed in the present case is whether, for the purposes of a complaint under Article 8 ECHR, persons outside a Contracting State fall within its territorial jurisdiction if their electronic communications were (or were at risk of being) intercepted, searched and examined by that State’s intelligence agencies operating within its borders. The first applicant is a national of the United States of America and lives in Florida. The second applicant is an Italian who lives in Berlin. On the domestic level, the supervisory body (IPT) concluded that a Contracting State owed no obligation under Article 8 of the Convention to persons both of whom were situated outside its territory in respect of electronic communications between them which passed through that State.  The applicants complain under Article ECHR that, as a result of their work and contacts, their communications might have been intercepted, extracted, filtered, stored, analysed and disseminated by the UK intelligence agencies pursuant to the Regulation of Investigatory Powers Act 2000 (RIPA).
AnalysisThe ECtHR points out that in Brother Watch, it considered the Convention compliance of the bulk interception regime. In particular, it found that there was no independent authorisation of warrants, the categories of selectors used to search intercepted communications did not have to be included in the application for a warrant, and selectors linked to an individual were not subject to prior internal authorisation. The principal issue in the present case, it continues, is not the Convention compliance of that regime, but rather the preliminary question of admissibility of the individual applications. On this point, the Government have raised two preliminary objections: the exhaustion of domestic remedies, Article 35 ECHR; and jurisdictional competence for the purposes of Article 1 ECHR.
As to the first point, the Government contend that the applicants should have brought judicial review proceedings in 2016, after the IPT decision was handed down in their case. The ECtHR however finds that in 2016, judicial review of an IPT decision was not “sufficiently certain” both in theory and in practice as to constitute an accessible and effective remedy. A challenge to was an “extraordinary remedy” which applicants would not normally be required to exhaust. Interestingly, the Government points out that applicants’ solicitor also represented Privacy International some years earlier, when that party did seek such judicial review. ‘However, this alone is not sufficient to overcome the fact that the Government have not sufficiently demonstrated that in 2016, when the applicants lodged the present cases before the Court, an application for judicial review of the IPT’s decision was sufficiently “certain”, either in theory or in practice, as to provide an accessible and available remedy which the applicants were required to exhaust for the purposes of Article 35 § 1 of the Convention. The Government’s preliminary objection on this issue is therefore dismissed (§73).’

The second point is the more interesting and controversial one. The Court explains that never before deal in substance with the matter of jurisdiction in the context of a complaint concerning an interference with an applicant’s electronic communications.  The government argues that any interference with the applicants’ private lives could not be separated from their person and would therefore have produced effects only where they themselves were located – that is, outside the territory of the United Kingdom. But the Court disagrees, drawing several analogies, inter alia with searching a person’s home: ‘it could not seriously be suggested that the search of a person’s home within a Contracting State would fall outside that State’s territorial jurisdiction if the person was abroad when the search took place. … Turning to the facts of the case at hand, the interception of communications and the subsequent searching, examination and use of those communications interferes both with the privacy of the sender and/or recipient, and with the privacy of the communications themselves. Under the section 8(4) regime the interference with the privacy of communications clearly takes place where those communications are intercepted, searched, examined and used and the resulting injury to the privacy rights of the sender and/or recipient will also take place there. (§93-94).’
The Court then continues with another preliminary defence, which is not in fact raised by the government, but the ECtHR nevertheless evaluates ex officio, namely as to the victim status of the applicants. Here, the ECtHR refers to its earlier ruling in Zakharov, in which it accepted an in abstracto claim. This means that anyone who could have been a victim, but is incapable of verifying whether that had been the case, is allowed to bring forth a claim. Interesting, however, the Court now explicitly denies that it ever said that it would for an in abstracto claim, but that potential applicants must take steps to substantiate their claim that they were potentially at risk of having their communications intercepted, searched and possibly even examined under the impugned surveillance regime. After a long and theoretical discussion, the Court abruptly ends its thought process with the brief remark that the government didn’t put forth that the applicants could not be seen as victims, which is why it would accept the applicants victim status. Why did the Court bring this point up ex officio? To revise its original stance in Zakharov on in abstracto claims?
Referring to Big Brother Watch, the Court accepts a violation of Article 8 ECHR. The Court however does not accept a complaint under Article 10 ECHR, because the applicants did not demonstrate that they were communicating for journalistic purposes. The Court does not find it necessary to assess in substance the claim under Article 13+8 ECHR.
Other Article violation? No Violation 10 ECHR or 13+8 ECHR
Damage awarded (i) EUR 33,155 (thirty-three thousand one hundred and fifty‑five euros), inclusive of any tax that may be chargeable to them, in respect of costs and expenses
Documents Judgment