CEDH · CASELAW;CLIN;ENG — 10 décembre 2024

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France (dec.) - 49526/15, 49615/15, 49616/15 et al. Decision 10.12.2024 [Section V] Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Applicants’ failure to use effective domestic remedy in respect of risk that journalists and lawyers may be placed under secret surveillance as prescribed by law: inadmissible Facts   – The Law of 24   July 2015 on intelligence gathering established a legal framework for a single authorisation and oversight system applicable to a relatively wide range of surveillance measures, which were referred to in domestic law as “intelligence-gathering techniques”. Applicants   1 to   8, 13 and   14 are journalists and a professional association for journalists. Applicants   9 to 12 are lawyers. They all complained about the risk that an intelligence-gathering technique prescribed by that Law might be used to monitor their activities. Before the Court the applicants alleged a violation of Articles   6, 8, 10 and 13 of the Convention. Law   – Article   35 §   1: Applicants   1 to 12 had not availed themselves of any of the domestic remedies provided for in the Law of 24   July 2015 in order to ascertain that no intelligence-gathering techniques were being or had been used unlawfully to monitor them. Applicants   13 and 14, who had made use of those remedies, had not raised any arguments based on the Convention in their submissions to the Conseil d’État . They all asserted before the Court that those remedies were ineffective in the present case. (1)   Remedies referred to by the Government   – (a)   Complaint to the National Oversight Commission for Intelligence-Gathering Techniques ( Commission nationale de contrôle des techniques de renseignement – “the CNCTR”) under Article L.   833‑4 of the Domestic Security Code – In addition to the oversight which it carried out on its own initiative, the CNCTR also reviewed intelligence-gathering techniques and the lawfulness of their implementation at the request of any persons who suspected that such a technique had been used to monitor them. First, the CNCTR had the characteristics of a body independent of the executive. Second, the members of the CNCTR and the civil servants who assisted them held national security clearance. They had full, permanent and direct access to the intelligence transcribed, retrieved or otherwise gathered and to the related traceability mechanisms and could request from the Prime Minister any information needed to perform their duties. Third, the CNCTR’s powers were limited in the event an unlawful act was found, in that it could not directly order a surveillance measure to be lifted and the intelligence gathered to be destroyed, but could only make a recommendation to that effect to the Prime Minister, the minister responsible for its implementation or the department concerned. That being said, the Chair of the CNCTR or at least three of its members could bring the matter before the Conseil d’État for adjudication under Article L.   841‑1 of the Domestic Security Code if they considered that the relevant authorities had not given an adequate response to a recommendation. To date, however, all the CNCTR’s recommendations had been followed by the Prime Minister and no such action had needed to be brought before the Conseil d’État . Lastly, while the CNCTR’s role of conducting reviews in response to individual complaints was performed in parallel to its role of overseeing the use of intelligence-gathering techniques in general, an application to that body was a prerequisite to any proceedings before the Conseil d’État , which formed the second pillar of the oversight mechanism provided for in the Law of 24   July 2015. (b)   Remedy before the Conseil d’État under Article L.   841‑1 of the Domestic Security Code   – The procedure followed before the Conseil d’État was an exception to the general law in that it relaxed the adversarial principle for the purpose of reconciling the requirements of a fair hearing and the need to protect classified information in matters of national defence. The Court nevertheless considered that, first, the restrictions   – inherent in any secret-surveillance system   – imposed on the adversarial principle and the principle of equality of arms were counterbalanced in the French legal framework by strong procedural safeguards. The procedure in place was such as to enable the Conseil d’État to make an informed decision, in the light of all the facts of the case and without being limited to an assessment of the complainant’s arguments. Second, the Conseil d’État , should it find any unlawful act, had the power to cancel the authorisation for the use of the intelligence-gathering technique in question and to order any unlawfully gathered intelligence to be destroyed. It could also order the State to pay compensation for any damage sustained   – where it had received claims to that effect   – and was required to inform the public prosecutor in the event that the unlawful act found might constitute an offence. The Court considered that those powers were such as to afford appropriate redress in secret-surveillance matters. Third, the decisions delivered by the bench of the Conseil d’État specialised in intelligence oversight were public but could not in any circumstances disclose classified information in matters of national defence. The Court acknowledged that the Conseil d’État ’s decisions therefore contained scant reasoning. In the specific realm of secret surveillance, however, it had previously accepted that States had a legitimate need for secrecy and that the notification of a surveillance measure might jeopardise the long-term purpose that prompted the surveillance and serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. For that reason, the Court considered that the Convention could not be interpreted as requiring a remedy that would advise complainants whether interception had taken place, and accepted that a Contracting State could implement a “neither confirm nor deny” policy. Fourth, the Constitutional Council had declared that the domestic provisions laying down procedural exceptions to the adversarial principle in matters before the specialised bench of the Conseil d’État were compatible with the Constitution. In view of the foregoing considerations as to how the specialised bench of the Conseil d’État examined applications and the powers it had to deal with unlawful acts, the Court found that the remedy provided for in Article L.   841‑1 of the Domestic Security Code, preceded by the remedy before the CNCTR, was in principle effective. In that connection, it reiterated that, in secret-surveillance matters, an “effective remedy” under Article   13 had to mean a remedy that was as effective as could be having regard to the restricted scope for recourse inherent in any system of surveillance. It therefore remained for the Court to determine whether the circumstances relied on by the applicants exempted them from making use of that remedy. With regard to the Constitutional Council’s decision of 23   July 2015, declaring that the relevant provisions of the Domestic Security Code concerning intelligence-gathering techniques were constitutional, the Court had repeatedly emphasised that the Constitutional Council’s review of constitutionality was distinct from the ordinary courts’ review of Convention compliance. A measure taken under a law declared constitutional by the Constitutional Council could nevertheless be considered incompatible with the relevant rights as guaranteed by the Convention, because it was disproportionate in the circumstances of the case, for example. In addition, on the dates when applications nos.   1 to 12 had been lodged (on the date the Law of 24   July 2015 entered into force or in the subsequent two months), the Conseil d’État had not yet delivered a decision on the matter. The Court therefore considered that the applicants could not rely on the existence of unfavourable settled case-law and that, if they had had doubts as to whether an intelligence-gathering technique might be used to monitor them as journalists or lawyers, they should have dispelled that uncertainty by availing themselves of the remedy referred to by the Government. The Court reiterated that the existence of mere doubts as to the prospects of success of a particular remedy which was not obviously futile was not a valid reason for failing to make use of that remedy. On the contrary, given the special, novel nature of the remedy provided for in Article L.   841‑1 of the Domestic Security Code, the applicants, had they applied to the specialised bench of the Conseil d’État , would have enabled that institution to develop its case-law concerning the use of intelligence-gathering techniques. The Conseil d’État had, in fact, subsequently ruled on the conditions for the use of intelligence-gathering techniques in the monitoring of lawyers. (2)   Conclusion   – In the light of all the above considerations, the Court found that, at the time the applicants had lodged their applications, an effective remedy had been available to them before the Conseil d’État under Article L.   841‑1 of the Domestic Security Code and they should have first used that avenue to submit the Convention complaints which they had raised before the Court. It further found that the applicants had not established the existence of any special circumstances exempting them from the obligation to make use of that remedy in the present case. Conclusion : inadmissible (failure to exhaust domestic remedies for the complaints under Articles   8 and   10; manifestly ill-founded for the complaints under Articles   6 and   13). (See also Kennedy v.   the United Kingdom , 26839/05, 18   May 2010, Legal Summary ; Roman Zakharov v.   Russia [GC], 47143/06, 4   December 2015, Legal Summary ; Graner v.   France (dec.), 84536/17, 5   May 2020, Legal Summary ; Big Brother Watch and Others v.   the United Kingdom [GC], 58170/13 et   al., 25   May 2021, Legal Summary ; Centrum för rättvisa v.   Sweden [GC], 35252/08, 25   May 2021, Legal Summary ; Pietrzak and Bychawska‑Siniarska and Others. v.   Poland , 72038/17 and 25237/18, 28   May 2024, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .