The European Court of Human Rights [‘ECHR’] have found it completely unacceptable for there to be surveillance over communications of citizens, be it through post or be it through telecommunications services, without there being stringent legal safeguards. In fact, such interference without the appropriate safeguards would constitute a breach of Article 8 of the European Convention of Human Rights [‘Convention’].
According to the Courts’ assessment in the case of Iordachi and others vs Moldova (decided by the Fourth Section in 2009) the potential alone of possible surveillance over such communications is enough to constitute a breach of Article 8 of the Convention. The Court reiterated that under domestic law there should be assurance of the enjoyment of the rights guaranteed by the Convention. Thus, although in this case there was no evidence per se of there being telephone tapping, given that the domestic law allowed for the potentiality of such actions is enough for there to be a breach of Article 8 of the Convention.
The Grand Chamber in the case of Big Brother Watch and Others vs the United Kingdom (decided by the Grand Chamber in 2021). went a step further to refer to the six “minimum safeguards” which should be set out in law to avoid abuses of power. These were the following; the nature of offences which may give rise to an interception order, a definition of the categories of people liable to have their communications intercepted, a limit on the duration of interception, 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 intercepted data may or must be erased or destroyed. The Grand Chamber noted that these six minimum safeguards, first set out in Huvig vs. France, had been applied routinely by the European Court.
Thus, surveillance legislation enacted by any Member State must ensure that the rights established in the Convention are respected and safeguarded.
