CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 18 mai 2010

.s800EAC49 { font-size:12pt } .sA678F94A { margin-top:0pt; margin-bottom:0pt; text-align:right; font-size:11pt } .s29100277 { font-family:Arial; font-weight:bold } .s598389F8 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:11pt } .sBB9EE52A { font-family:Arial } .s7ED160F0 { text-decoration:none } .s8304C6AF { font-family:Arial; font-size:7.33pt; font-weight:bold; vertical-align:super; color:#0069d6 } .sA36B60A1 { font-family:Arial; font-style:italic } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sE202B2ED { font-family:Arial; font-size:11pt; font-weight:bold; font-style:italic; text-decoration:underline; color:#0069d6 } .s1F6AC3E7 { font-family:Arial; font-size:11pt; font-style:italic } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s2E932ED2 { margin-top:0pt; margin-bottom:0pt; font-size:11pt } .s99A63BFE { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s11AD46B1 { font-family:Arial; font-size:7.33pt; vertical-align:super; color:#0069d6 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s906CA806 { margin-top:0pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid; font-size:11pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s4BAE41EE { font-family:Arial; font-size:11pt } .sBACB3D60 { font-family:Arial; font-size:11pt; text-decoration:underline; color:#000000 } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s9FE28126 { margin-top:0pt; margin-right:42.5pt; margin-bottom:0pt; text-align:left; font-size:11pt } .sF6A12959 { width:33%; height:1px; text-align:left } .s5FFF0A7E { margin-top:0pt; margin-bottom:0pt; font-size:8pt } .sCC018295 { font-family:Arial; font-size:5.33pt; vertical-align:super; color:#0069d6 } .sB853CD26 { font-family:Arial; font-size:8pt } .s52B1583 { font-family:Arial; font-size:8pt; text-decoration:underline; color:#0069d6 } .s63B28A23 { margin-top:0pt; margin-bottom:0pt; text-align:left; font-size:9pt } .sBACB86A2 { font-family:Arial; font-size:6pt; vertical-align:super; color:#0069d6 } 397 18.05.2010   Press release issued by the Registrar   Chamber judgment Not Final [1]   Kennedy v. the United Kingdom (application no. 26839/05)     Secret surveillance measures did not interfere with the applicant’s private life   Unanimously   No violation of Article 8 (right to respect for private and family life and correspondence) No violation of Article 6 § 1 (right to a fair trial) No violation of Article 13 (right to an effective remedy) of the European Convention on Human Rights     Principal facts   The applicant, Malcolm Kennedy, is a British national who was born in 1946 and lives in London. When arrested for drunkenness in 1990 he spent the night in detention with an inmate who was found dead the next day. Mr Kennedy was subsequently found guilty of the man’s murder and sentenced to life imprisonment. His case was controversial in the United Kingdom on account of missing and conflicting evidence.   Released from prison in 1996, Mr Kennedy started a removal business. He alleged that his business mail, telephone and email communications were being intercepted because of his high profile case and his subsequent involvement in campaigning against miscarriages of justice.   The applicant complained to the Investigatory Powers Tribunal (“IPT”) that his communications were being intercepted in “challengeable circumstances” amounting to a violation of his private life. Mr Kennedy sought the prohibition of any communication interception by the intelligence agencies and the “destruction of any product of such interception”. He also requested specific directions to ensure the fairness of the proceedings before the IPT, including an oral hearing in public, and a mutual inspection of witness statements and evidence between the parties.   The IPT proceeded to examine the applicant’s specific complaints in private, and in 2005 ruled that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful.     Complaints, procedure and composition of the Court   Relying on Article 8 the applicant complained about the alleged interception of his communications. He further complained, under Article 6 § 1, that the hearing before the IPT had not been fair, and, under Article 13, that as a result he had been denied an effective remedy.   The application was lodged with the European Court of Human Rights on 12 July   2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Lech Garlicki (Poland), President , Nicolas Bratza (the United Kingdom), Giovanni Bonello (Malta), Ljiljana Mijović (Bosnia and Herzegovina), Päivi Hirvelä (Finland), Ledi Bianku (Albania), Nebojša Vučinić (Montenegro), judges , and also Lawrence Early , Section Registrar .     Decision of the Court   Article 8   The Court reiterated that, based on the principle of effective protection by the Convention’s system, an individual might – under certain conditions to be determined in each case – claim to be the victim of a violation as a result of the mere existence of secret measures, even if they were not applied to him. This departure from the Court’s general approach was to ensure that such measures, although secret, could be challenged and judicially supervised. In the applicant’s case, the Court considered that it could not be excluded that secret surveillance measures were applied to him or that he was, at the material time, potentially at risk of being subjected to such measures. Accordingly, the Court concluded that he could complain of an interference with his Article 8 rights.   The Court considered it clear that the interference in question pursued the legitimate aims of protecting national security and the economic well-being of the country and preventing crime. In addition, it was carried out on the basis of the Regulation of Investigatory Powers Act 2000 (“RIPA”), supplemented by the Interception of Communications Code of Practice (“the Code”). The RIPA was available on the Internet, and hence accessible. It defined with sufficient precision the cases in which communications could be intercepted. While the offences allowing interception were not set out by name, the Court noted that States were not compelled to exhaustively list national security offences as those were by nature difficult to define in advance. Finally, as only communications within the United Kingdom were concerned in the present case – unlike in Liberty and Others v. the UK [2] – the domestic law described more fully the categories of persons who could be subject to an interception of their communications.   As regards the processing, communication and destruction of data, the Court noted that the overall duration of interception measures had to be left to the discretion of the domestic authorities, as long as adequate safeguards were put in place. In the present case the renewal or cancellation of interception warrants were under the systematic supervision of the Secretary of State. In addition, contrary to the practice for communications with other countries, the domestic law provided that warrants for internal communications related to one person or one set of premises only, thereby limiting the scope of the authorities’ discretion to intercept and listen to private communications. The law – more specifically the Code – also strictly limited the number of persons who had access to the intercept material, of which only a summary would be disclosed whenever sufficient. It also required the data to be destroyed as soon as they were no longer necessary, and detailed records of the warrants to be kept.   In terms of supervision of the RIPA regime, under the legislation a Commissioner was appointed who was independent from the executive and legislative authorities. His annual report to the Prime Minister was a public document and was laid before Parliament. The Court found his role in ensuring that the legal provisions were applied correctly very valuable, as well as his biannual review of a random selection of specific cases in which interception had been authorized. The Court further highlighted the extensive jurisdiction of Investigatory Powers Tribunal to examine any complaint of unlawful interception of communications. Unlike in many other countries, any person could apply to the IPT, which was an independent and impartial body. It had access to closed material and could require the Commissioner to order disclosure of all documents it considered relevant. When the IPT found in the applicant’s favour, it could quash any interception order, require destruction of intercepted material and order compensation. The publication of the IPT’s legal rulings further enhanced the level of scrutiny over secret surveillance activities in the United Kingdom.   The Court concluded that in the present case the relevant domestic provisions indicated with sufficient clarity the procedures concerning interception warrants as well as the processing, communicating and destruction of data collected. The Court further observed that there was no evidence of any significant shortcomings in the application and operation of the surveillance regime. Therefore there had been no violation of Article 8.   Article 6 § 1   The Court reiterated that there might be restrictions on the right to fully adversarial proceedings where strictly necessary in the light of a strong countervailing public interest. Restrictions in the IPT proceedings were justified by confidentiality considerations and the nature of the issues justified the absence of an oral hearing. The Court further noted that according to Article 6 § 1 of the Convention, national security might justify the exclusion of the public from the proceedings. As to the policy of the authorities to “neither confirm nor deny”, the Court found it was sufficient that an applicant be informed in those terms.   The Court emphasised the breadth and convenience of access to the IPT enjoyed by those complaining about interception within the United Kingdom. Bearing in mind the importance of secret surveillance to the fight against terrorism and serious crime, the Court considered that the restrictions on the applicant’s rights in the context of the proceedings before the IPT were both necessary and proportionate and were not contrary to Article 6.   Article 13   Having regard to its conclusions in respect of Article 8 and Article   6 § 1, the Court considered that the IPT offered to the applicant an effective remedy insofar as his complaint was directed towards the alleged interception of his communications.     In respect of the applicant’s general complaint under Article 8, the Court reiterated that Article 13 did not go so far as to guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or to equivalent domestic legal norms. The Court therefore dismissed the applicant’s complaint under this Article.   ***   The judgment is available only in English. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website ( http://www.echr.coe.int ).   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution . [2] Liberty and Others v. the United Kingdom, no. 58243/00