CYIL vol. 7 (2016)

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MILAN LIPOVSKÝ CYIL 7 ȍ2016Ȏ
As may be seen in article 8(2) ECHR, any interference within the protected right
must be legal, necessary and also proportional. One of the most problematic issues
is thus secret surveillance. The ECtHR discussed it quite early, already in the 1970s.
Due to not informing the surveilled person, secret surveillance can be very effective
in combating criminality; on the other hand, due to his lack of knowledge, it is also
unchallengeable by the person whose rights were interfered with. In the case of Klass
v. Germany,20 the Court stated that due to threats of terrorism, the State needs to
adapt and use new methods as well, and the Court accepted that “the existence of some
legislation granting powers of secret surveillance […] is, under exceptional conditions,
necessary in a democratic society in the interests of national security and/or for the
prevention of disorder or crime.” In other cases the Court very often focuses on clarity
of authorizing the surveillance and finds violation of article 8 ECHR if the degree is
insufficient.
Hence, secret surveillance, under very restricted circumstances, may be in
compliance with the ECHR; however, there are very strict conditions that need to be
fulfilled. In Zakharov v. Russia,21 the ECtHR confirmed that secret surveillance creates
a higher risk of abuse and arbitrary treatment. It criticized the framework under
which secret surveillance could have been established. Clearly, the ECtHR agrees on
the need for secret surveillance in special situations but requires the legality of it to
be increasingly strict. That supports the above-mentioned ideas in regard to effective
remedy and general reports.
In similar vein, the European Court of Human Rights is currently dealing with
the case of Big Brother Watch and Others v. the United Kingdom,22 a case stemming
out of the right to privacy issues after the Snowden affair. Without doubt the Court’s
opinion will be interesting reading. It will need to take into account some of the most
relevant issues discussed above (and below) and apply them to the current situation
when some claim the threat of terrorism is actually permanent and so measures usually
available only in special circumstances should be applied too. Let us see how the Court
solves this issue. The very problematic question is going to be related to the so-called
TEMPORA program – a program designed also for “tapping the fiber cables carrying
Internet traffic to scan and analyze all electronic data that goes in or out of the UK.”23
Such a program is without doubt highly controversial for its indiscriminate
nature. The Court will not only have to address the legality requirements of secret
surveillance as it did in previous case-law but will also have to address conformity of
the mass surveillance with the European human rights protection system. Even if it
is accepted that States may resort to special measures in special circumstances, such
20 ECtHR, Klass and Others v. Germany, Appl. No. 5029/71, Judgment of September 6, 1978, s. 48.
21 ECtHR, Roman Zakharov v. Russia, Appl. No. 47143/06, judgment of December 4, 2015, summary
on URL < [last visited June 9, 2016].
22 ECtHR, Big Brother Watch and Others v. the United Kingdom, appl. No. 58170/13.
23 URL < [last visited June 9, 2016].