LA SUPERVISION GENERALIZADA DE LAS TELECOMUNICACIONES SEGUN EL TRIBUNAL EUROPEO DE DERECHOS HUMANOS

El Tribunal Europeo de Derechos Humanos en el caso “Liberty & Other Organisations v. United Kingdom” ha condenado al Reino Unido por un esquema legal de supervisión generalizada de las comunicaciones, incluidas las electrónicas, que no respetaba los requisitos generales de “previsibilidad” exigibles según el Tribunal por el artículo 8 de la Convención Europea de Derechos Humanos .

La decisión es muy importante. Menciona y sigue la jurisprudencia ya establecida en relación con similar legislación en Alemania (“Weber and Saravia v. Germany”). En especial , tiene trascendencia en relación con la obligación de archivo de comunicaciones establecida sobre los proveedores de servicios en la legislación de los distintos países y también sobre la supervisión generalizada, cualquier que sea el acuerdo origen de la mima, que no cumpla los requisitos de “previsibilidad” a los que se refiere la decisión del Tribunal.

A título de ejemplo, resulta evidente que la Sentencia de la Sala de lo Penal del Tribunal Supremo español de 9 de Mayo de 2008 , aquí comentada y referida a una supervisión generalizada de determinadas comunicaciones en redes P2P, que estuvo en el origen de una condena penal, debió considerar que dicha supervisión era contraria al artículo 8 de la Convención y al secreto de las comunicaciones constitucionalmente garantizado. La STS cita el caso “Malone” para intentar “cubrir” este aspecto, pero a la vista de esta importante sentencia, parece claro que “Malone” –también citado aquí por el TEDH- no controlaba el caso decidido por el Supremo español.

La Sentencia no encuentra razones por las que las supervisiones generalizadas de las comunicaciones tengan que regirse por criterios distintos a los efectos de la Convención y, por tanto, a efectos constitucionales en aquellos países que como España incorporan la jurisprudencia del TEDH (artículo 10.3 CE) en su jurisprudencia constitucional.

Estas son las principales consideraciones de la Sentencia (en inglés):
CASE OF LIBERTY AND OTHERS
v. THE UNITED KINGDOM
(Application no. 58243/00)
JUDGMENT

STRASBOURG

1 July 2008

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Liberty and Others v. the United Kingdom,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having deliberated in private on 10 June 2008,

Delivers the following judgment, which was adopted on that date:

“62. More recently, in its admissibility decision in Weber and Saravia, cited above, §§ 93-95, the Court summarised its case-law on the requirement of legal “foreseeability” in this field as follows (and see also Association for European Integration and Human Rights and Ekimzhiev, cited above, §§ 75-77):

“93. .... foreseeability in the special context of secret measures of surveillance, such as the interception of communications, cannot mean that an individual should be able to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see, inter alia, Leander [v. Sweden, judgment of 26 August 1987, Series A no. 116], p. 23, § 51). However, especially where a power vested in the executive is exercised in secret, the risks of arbitrariness are evident (see, inter alia, Malone, cited above, p. 32, § 67; Huvig, cited above, pp. 54-55, § 29; and Rotaru [v. Romania [GC], no. 28341/95, § 55, ECHR 2000-V]). It is therefore essential to have clear, detailed rules on interception of telephone conversations, especially as the technology available for use is continually becoming more sophisticated (see Kopp v. Switzerland, judgment of 25 March 1998, Reports 1998-II, pp. 542-43, § 72, and Valenzuela Contreras v. Spain, judgment of 30 July 1998, Reports 1998-V, pp. 1924-25, § 46). The domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to any such measures (see Malone, ibid.; Kopp, cited above, p. 541, § 64; Huvig, cited above, pp. 54-55, § 29; and Valenzuela Contreras, ibid.).

94. Moreover, since the implementation in practice of measures of secret surveillance of communications is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive or to a judge to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see, among other authorities, Malone, cited above, pp. 32-33, § 68; Leander, cited above, p. 23, § 51; and Huvig, cited above, pp. 54-55, § 29).

95. In its case-law on secret measures of surveillance, the Court has developed the following minimum safeguards that should be set out in statute law in order to avoid abuses of power: the nature of the offences which may give rise to an interception order; a definition of the categories of people liable to have their telephones tapped; a limit on the duration of telephone tapping; 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 recordings may or must be erased or the tapes destroyed (see, inter alia, Huvig, cited above, p. 56, § 34; Amann, cited above, § 76; Valenzuela Contreras, cited above, pp. 1924-25, § 46; and Prado Bugallo v. Spain, no. 58496/00, § 30, 18 February 2003).”

63. It is true that the above requirements were first developed by the Court in connection with measures of surveillance targeted at specific individuals or addresses (the equivalent, within the United Kingdom, of the section 3(1) regime). However, the Weber and Saravia case was itself concerned with generalised “strategic monitoring”, rather than the monitoring of individuals (cited above, § 18). The Court does not consider that there is any ground to apply different principles concerning the accessibility and clarity of the rules governing the interception of individual communications, on the one hand, and more general programmes of surveillance, on the other. The Court’s approach to the foreseeability requirement in this field has, therefore, evolved since the Commission considered the United Kingdom’s surveillance scheme in its above-cited decision in Christie v. the United Kingdom.

b. Application of the general principles to the present case

64. The Court recalls that section 3(2) of the 1985 Act allowed the executive an extremely broad discretion in respect of the interception of communications passing between the United Kingdom and an external receiver, namely to intercept “such external communications as are described in the warrant”. There was no limit to the type of external communications which could be included in a section 3(2) warrant. According to the applicants, warrants covered very broad classes of communications, for example, “all commercial submarine cables having one terminal in the UK and carrying external commercial communications to Europe”, and all communications falling within the specified category would be physically intercepted (see paragraph 43 above). In their observations to the Court, the Government accepted that, in principle, any person who sent or received any form of telecommunication outside the British Islands during the period in question could have had such a communication intercepted under a section 3(2) warrant (see paragraph 47 above). The legal discretion granted to the executive for the physical capture of external communications was, therefore, virtually unfettered.

65. Moreover, the 1985 Act also conferred a wide discretion on the State authorities as regards which communications, out of the total volume of those physically captured, were listened to or read. At the time of issuing a section 3(2) interception warrant, the Secretary of State was required to issue a certificate containing a description of the intercepted material which he considered should be examined. Again, according to the applicants, certificates were formulated in general terms and related only to intelligence tasks and priorities, such as, for example, “national security”, “preventing or detecting serious crime” or “safeguarding the economic well-being of the United Kingdom” (see paragraph 43 above). On the face of the 1985 Act, only external communications emanating from a particular address in the United Kingdom could not be included in a certificate for examination unless the Secretary of State considered it necessary for the prevention or detection of acts of terrorism (see paragraphs 23-24 above). Otherwise, the legislation provided that material could be contained in a certificate, and thus listened to or read, if the Secretary of State considered this was required in the interests of national security, the prevention of serious crime or the protection of the United Kingdom’s economy.

66. Under section 6 of the 1985 Act, the Secretary of State, when issuing a warrant for the interception of external communications, was called upon to “make such arrangements as he consider[ed] necessary” to ensure that material not covered by the certificate was not examined and that material that was certified as requiring examination was disclosed and reproduced only to the extent necessary. The applicants contend that material was selected for examination by an electronic search engine, and that search terms, falling within the broad categories covered by the certificates, were selected and operated by officials (see paragraph 43 above). According to the Government (see paragraphs 48-51 above), there were at the relevant time internal regulations, manuals and instructions applying to the processes of selection for examination, dissemination and storage of intercepted material, which provided a safeguard against abuse of power. The Court observes, however, that details of these “arrangements” made under section 6 were not contained in legislation or otherwise made available to the public.

67. The fact that the Commissioner in his annual reports concluded that the Secretary of State’s “arrangements” had been complied with (see paragraphs 32-33 above), while an important safeguard against abuse of power, did not contribute towards the accessibility and clarity of the scheme, since he was not able to reveal what the “arrangements” were. In this connection the Court recalls its above case-law to the effect that the procedures to be followed for examining, using and storing intercepted material, inter alia, should be set out in a form which is open to public scrutiny and knowledge.

68. The Court notes the Government’s concern that the publication of information regarding the arrangements made by the Secretary of State for the examination, use, storage, communication and destruction of intercepted material during the period in question might have damaged the efficacy of the intelligence-gathering system or given rise to a security risk. However, it observes that the German authorities considered it safe to include in the G10 Act, as examined in Weber and Saravia (cited above), express provisions about the treatment of material derived from strategic interception as applied to non-German telephone connections. In particular, the G10 Act stated that the Federal Intelligence Service was authorised to carry out monitoring of communications only with the aid of search terms which served, and were suitable for, the investigation of the dangers described in the monitoring order and which search terms had to be listed in the monitoring order (op. cit., § 32). Moreover, the rules on storing and destroying data obtained through strategic monitoring were set out in detail in section 3(6) and (7) and section 7(4) of the amended G10 Act (see Weber and Saravia, cited above, § 100). The authorities storing the data had to verify every six months whether those data were still necessary to achieve the purposes for which they had been obtained by or transmitted to them. If that was not the case, they had to be destroyed and deleted from the files or, at the very least, access to them had to be blocked; the destruction had to be recorded in minutes and, in the cases envisaged in section 3(6) and section 7(4), had to be supervised by a staff member qualified to hold judicial office. The G10 Act further set out detailed provisions governing the transmission, retention and use of data obtained through the interception of external communications (op. cit., §§ 33-50). In the United Kingdom, extensive extracts from the Code of Practice issued under section 71 of the 2000 Act are now in the public domain (see paragraph 40 above), which suggests that it is possible for a State to make public certain details about the operation of a scheme of external surveillance without compromising national security.

69. In conclusion, the Court does not consider that the domestic law at the relevant time indicated with sufficient clarity, so as to provide adequate protection against abuse of power, the scope or manner of exercise of the very wide discretion conferred on the State to intercept and examine external communications. In particular, it did not, as required by the Court’s case-law, set out in a form accessible to the public any indication of the procedure to be followed for selecting for examination, sharing, storing and destroying intercepted material. The interference with the applicants’ rights under Article 8 was not, therefore, “in accordance with the law”.

70. It follows that there has been a violation of Article 8 in this case.”

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