"Echelon" and Europe. TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM. September 2000.

8/11/2019 "Echelon" and Europe. TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM. September 2000.

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TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM

THE SECRETARIAT

COMMUNICATION TO MEMBERS

Members will find attached a document submitted by Mr Dimitri YERNAULT, Universit Libre

de Bruxelles:

ECHELON AND EUROPE


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ECHELON AND EUROPE1

Dimitri YERNAULT,

Research assistant

Centre de Droit public

Universit Libre de Bruxelles

Brussels, 13 September 2000

Journal des Tribunaux Droit Europen, October 2000

The new information technologies, in addition to the fantastic scope they offer for expansion in

the fields of the advancement of knowledge and trade, also represent a considerable threat to the

right to respect of privacy. This is true in the field of purely private relationships, simply takingthe example of the uncontrolled recording of individual consumption patterns. It is also true, as

witness the unmasking of the global electronic surveillance programme known as Echelon, of therelationships between the individual and authority. In the case of Echelon there is the extra factor

that anybody (surveillance no longer being restricted to officials of hostile states or members of

allegedly terrorist groups) may be eavesdropped on by any means (any type of electroniccommunication, pursuant to unknown rules) and anywhere (national sovereignty having become

a dead letter).

The European Union and its members are now living in the eye of the Campbell report2and the

resulting political implications. This report reveals the existence of several telecommunicationssurveillance systems, the most impressive of which appears to be the Echelon programme,

describes the electronic communications interception technologies used (satellite, all forms oftelephony, radio and microwave, etc.), and gives a detailed account of the operation of Echelon.

The Campbell report devotes special attention to allegations that US companies had been given

information on the operations of their European rivals by receiving information intercepted by

Echelon.

However, Echelon also raises a new problem which is both crucial and neglected, affecting

modern human rights law: the demarcation of what Professor Emmanuel Decaux calls the

territory of human rights. The new police cooperation machinery illustrates this new situation: a

1This article is a much abridged and reformatted version of a study which will appear in issue 2000-1 of theRevue

Belge de Droit Internationalentitled From fiction to reality: the Echelon global electronic interception programmeand the international responsibility of states in the light of the European Convention on Human Rights. Our thanksto JTDE and RBDI for allowing this.2The Campbell report (named after the ITV journalist who played such a part in revealing the existence of Echelon)

is one of a larger group of five working documents entitledDevelopment of Surveillance Technology and Risk ofAbuse of Economic Informationconducted by the STOA panel (Scientific and Technological Options Assessment,PE 168.184, Luxembourg, 1999). The documents produced by STOA, which is attached to the European Parliament,

have been edited by Dick HOLDSWORTH: Peggy BECKER,presentation and analysis, volume 1/5 (the only studycurrently available in French); Duncan CAMPBELL, The state of the art in Communications Intelligence(COMINT) of automated processing for intelligence purposes of intercepted broadband multi-language leased orcommon-carrier systems, and its applicability to COMINT targeting and selection, including speech recognition,vol. 2/5; Frank LEPREVOST,Encryption and cryptosystems in electronic surveillance : a survey of the technologyassessment issues, vol. 3/5; Chris ELLIOT, The legality of interception of electronic communications : A concisesurvey of the principal legal issues and instruments under international, European and national law, vol. 4/5; NikosBOGOLIKOS, The perception of economic risks arising from the potential vulnerability of electronic commercialmedia to interception, vol. 5/5.


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set of authorities more or less organised by more or less public international agreements will

make up a network of de facto directories whose operational powers will henceforth be

superimposed on traditional national territorial powers, giving rise to serious risks of legalvacuums to the detriment of the security which should govern the protection of fundamental

rights3.

As the evidence, including various forgotten official sources, piles up (1.), the EuropeanParliament has set up a temporary committee which will probably play a crucial role in the future

of the campaign against Echelon (2.). We need to consider how resolutely the Commission will

establish Echelons breach of the principle of national sovereignty which entails the prohibition

of extraterritorial telephone tapping (3.). Breaches of this prohibition are moreover only one

aspect of the violations of the right to privacy guaranteed by Article 8 of the European

Convention for Human Rights. The secrecy of the rules governing Echelon constitute a violationof the principle of lawfulness which should govern interference with privacy such as electronic

interception; its explanatory and general nature entails a violation of the principle of necessity ina democratic society (4.a.). These breaches, imputable to states which are parties to the

convention (Germany, for passive participation confined to hosting an interception station and

the United Kingdom for active participation by its intelligence services), may properly becontested before the European Court of Human Rights, as Echelon is alleged to constitute a body

of administrative practices whose existence obviates the use for individuals to exhaust the

remedies in the participating countries, which individuals may claim the status of potential

victims of secret interference with their privacy (4.b.).

1. Echelon: the evidence piles up

(a)Echelon summed up: the unofficial details

Echelon is said to consist of a global network of computers able to trawl automatically through

millions of intercepted messages some speak of two million communications a minute or three

billion a day for pre-programmed key words in static or mobile telephone conversations, fax

and telex messages and electronic mail. This fantastically high-powered network is claimed to

feed electronic memories and data banks from a network of interception satellites covering the

entire globe. There are claimed to be relay and listening stations in seven countries: the UK andGermany (Europe), Japan (Asia), Australia and New Zealand (Oceania), Canada and the United

States (America). The US National Security Agency (NSA) is at the heart of this global messageinterception organisation. In conjunction with the intelligence services of four other countries

(UK, Australia, New Zealand and Canada) it set up the UKUSA system, a surveillance network

which arose in the wake of the Second World War. The Dictionary (group of programmes to

sort intercepted messages) of the Echelon listening stations is said to contain key words namednot only by the intelligence agency of the country concerned but also by those of the other four

countries involved. The struggle against the Soviet bloc has thus gradually given way to a new

national security concept which now includes commercial and economic intelligence4.

3Mlanges M.A. EISSEN, Brussels and Paris, Bruylant and LGDJ, 1995, p. 65.

4It is sometimes alleged that countries other than those mentioned also belong to the network. Our attention is

focussed on Germany and the UK because of the number of corroborating pointers to their possible involvement and

because these two states are both members of the EU and parties to the European Human Rights Convention. Therefollows a short and non-exhaustive list of Internet sites collecting information on Echelon: http://www.fas.org/irp/program/process/echelon.htm (site of the Federation of American Scientists with a


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(b)Echelon in official documents

The daily and electronic press has often recently rambled on about section 309 of the Intelligence

Authorisation Act for Fiscal Year 2000 approved by the US Congress in November 19995. This

required the US intelligence services, including the NSA, to indicate the legal basis on which

they were conducting electronic interception. The outcome of the hearings has not becomeknown and in any case section 309 related only to the protection of US citizens privacy. People

do, however, often forget to read this act in detail; it also includes a section 502 in its chapter

dealing with military intelligence agencies. This innocent-looking budgetary provision is entitled

Funding for Infrastructure and Quality of Life Improvements at Menwith Hill and Bad Aibling

Stations and confirms the existence of US electronic intelligence bases on the European

continent. The preparatory work for the National Defence Authorisation Act for Fiscal Year2000 confirms that the Menwith Hill base is run by the NSA6. One of its acknowledged functions

is missile detection which, however, involves only two of the 25 radomes officially listed by theUK Government7. The NSA base at Bad Aibling in Germany was at least used as a hub for US

and Nato forces communications during the Kosovo conflict8. While the US authorities are

apparently anxious to protect US citizens against electronic invasion of privacy, the Congressmade a strengthened NSA a strategic priority. The NSA has also supported the lodging of a

patent application by three of its officials to protect an intercepted message sorting procedure

which is highly reminiscent of Dictionary9

Official UK Parliament documents confirm not only that the Menwith Hill basis is operated bythe NSA but also that it is jointly run by HM Government10. The latter was still, in June 2000,

refusing to tell Parliament of the secret defence agreements linking it to the US Administration;only the 1951 agreement governing the establishment of NATO forces could be consulted in the

Parliament library11. However, given that the Government Communications Headquarters (UK

electronic intelligence service) internet site openly states that 'all GCHQ systems are linked

number of references); http://www.lemonde.fr/doss/0,2324,3156-1-MIA,00.html (Le Monde); http://www.tscm.com/cseukusa.html ; http://www.transnationale.org/sources/information/RFI/Default.htm

(report broadcast byRadio France Internationalon 15.02.1999) ; http://www.gwu.edu/-nsarchiv/NSAEBB/NSAEBB23/12_01.htm (George Washington University presents declassified documents oftheAir Intelligence Agencyproving the existence of Echelon) ; http://www.zdnet.fr and http://www.zdnet.co.uk (ZDNet sites giving the most detailed and up-to-date information as at 30 June 2000,including the latest articles by D CAMPBELL) ; http://www.cyber-rights.org/interception/echelon; and manyothers.5Public Law 106-120of 3 December 1999, 113 stat. 1619.

6See tables to section 2401 of the bill tabled by Representative SPENCE on

http://www.house.gov/hasc/billsandreports/106thcongress/hr1401ih.htm which clearly indicate that the Menwith

Hill base belongs to the RAF and is run by the NSA.7Written question by Mr BAKER, House of Commons bulletin of 9 November 1998, col. 9.

8Congress hearing by theHouse Armed Services Committee, on 17 February 2000, of General W CLARK, C-in-Cof the Nato forces during the conflict: http://www.house.gov/hasc/testimony/106thcongress/00-02-17clark.htm .9Patent application No. 5,937,422 lodged on 10 August 1999 at the US Patent and Trademark Office, http://164.195.100.11 .

10The presence of UK personnel at all levels ensures that British interests are safeguarded (oral question by Mr

BAKER, House of Commons sitting of 6 April 1998, col. 9); the site employs 415 US military and 989 US civilian

staff, 392 UK civilian staff; the number of Government Communications Headquarters staff was not revealed forreasons of national security (written question by Mr Baker, House of Commons Bulletin, 12 May 2000, col. 513).11Written question by Lord MARSH, House of Lords bulletin of 5 June 2000, co. 128-129.


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together on the largest local area network in Europe which is connected to other sites aroundthe world via one of the largest wide area networks on earth'12, it may reasonably be concludedthat an international electronic surveillance system does indeed exist, run by five 'Anglo-Saxon'countries.

If its existence was unknown to a former New Zealand Prime Minister13it was confirmed in

early 1999 by the head of the Australian electronic intelligence service (Defence SignalsDirectorate),

14but the most explicit official source is still chapter 27 of the 1996 report by the

Canadian Auditor-General's report, which has amazingly also remained in the shadows. After a

description of how Canada conducts its Signals Intelligence (electronic intelligence) policy, we

read that 'Canada has close formal intelligence relationships with a number of countries. Theclosest of these were forged during World War II and solidified during the Cold War. Linksremain particularly strong with the United States, the United Kingdom, Australia and New

Zealand. Intelligence products, including analyses and assessments, are exchanged, andtechnical assistance is provided by each to other'15.

France, which also has its own foreign military communications interception system (using the

Helios 1 satellite)16, has nevertheless objected to being in its turn a possible target of USelectronics intelligence and therefore set up a parliamentary information mission in February

200017

. The Paris Prosecutor's Office entrusted the DST with an investigation in early July

200018.

In Belgium, whose Ministry of Justice has called Echelon an attack on territorial sovereignty anda threat to the right to privacy19, there have been a number of parliamentary debates, during

which its Foreign Minister stated that he would take the action required if Echelon were provedto exist, a matter on which he did not conceal his concern20. These debates followed the approval

of the 1999 report of the Standing parliamentary supervisory Committee for the intelligence and

security services (the R Committee)21

, and the work in progress at the European Parliament. On

12

http://gchq.gov.uk/textonly/about/technology.html13D. LANGE, preface to Nicky HAGER's book Secret Power. New Zealand's Role in the International Spy Networkpublished in 1996, http://www.fas.org/irp/eprint/sp/sp_f1.htm.14D. CAMPBELL, 'Australia first to admit "were a part of global surveillance system"', Telepolis 28.05.1999 (on-line magazine, 'http://www.heise.de/tp/english/inhalt/te/2889/1.html').15

Chapter 27, para. 27.28 of the Canadian Auditor-General's report for 1996 'http://www.oag-bvg.gc.ca'. Thiscollaboration was formally confirmed in the 1999-2000 report of the Commissioner for the TelecommunicationsSecurity Centre, 'http://csec-ccst.gc.ca/reports/1999-2000/review_f.html'.16

National Assembly, opinion of the national Defence Committee on the 1999 finance bill, 8 October 1998, No1114, p. 53.17National Assembly, Defence Committee, 29 February 2000, Minutes No 27.18Librationof 5 July 2000 points out that the 'Direction de la Surveillance du Territoire' was to carry out theinquiry, while the 'Direction Gnrale de la Scurit extrieure,' with its own electronic intelligence infrastructure,was cooperating with the NSA.19

Answer to oral question by Mr VAN HOOREBEKE, records of the Committee on Justice of the BelgianChamber, 13 February 2000.20Record of the plenary sittings of the Senate, Thursday 17 February 2000, afternoon sitting; record of the

Committee on Foreign Affairs of the Belgian Chamber, Tuesday 22 February 2000.21

Report by Mr HORDIES and Mr DE DONNEA on the 1999 activities of the Standing Supervisory Committee onthe intelligence and security services, 14 February 2000, Doc. parl. Chambre 50 430/001 and Senate 2-332/1, from

which it appears that the Belgian services, claiming that they do not have the resources required, have not carriedout any investigation of Echelon going beyond a superficial consultation of sources in the public domain. On 8 May2000 the R Committee received a confidential report, which is still classified, in which it concluded that Echelon did


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8 May 2000 the R Committee received a further report which is still classified. Having taken the

Foreign Minister at his word, a socialist member proposed at the Senate sitting of 6 July 2000

that Belgium should bring proceedings before the European Court of Human Rights for a breachof Article 8 of the ECHR on the grounds first that Germany can no longer be unaware that it is

making its territory available to the NSA to conduct interceptions of telephone calls to thedetriment of the European publics right to privacy on the one hand, and second that the United

Kingdom is not only acting as host for at least one NSA site but is also playing an active part inthe interception of telephone calls under the UKUSA Agreement. The Belgian Foreign Ministry

replied in essence that the drawbacks of initiating proceedings as a State before the Strasbourg

Court were outweighed any symbolic victory Belgium might achieve22

. Between those favouring

and those opposing referral to the Strasbourg Court the President of the Senate proposed that the

debate should be held over until Parliament had reconvened, the Prime Minister, heard by the R

Committee subsequently having decided that debate would be premature pending the outcome ofthe European Parliaments work23.

2. Echelon and the European Parliament

The European Parliament has been trying to find out more about Echelon since an initial studypublished on 6 January 1998 stated that within Europe, all e-mail, telephone and faxcommunications are routinely intercepted by the United States National Security Agency,transferring all target information from the European mainland via the strategic hub of Londonthen by Satellite to Fort Meade in Maryland via the crucial hub at Menwith Hill in the NorthYork Moors of the UK24. A resolution of 16 September 1998, quoting Echelon by name, thenexpressed concern at electronic surveillance and its economic fallout in respect of transatlantic

relations25

. The debate resumed in 1999 with the publication of five new reports commissionedby the STOA panel and conspicuously resulted in the hearing of the journalist Duncan Campbell

on 22 February 2000 by the Committee on Legal Affairs and the Internal Market and the

Committee on Citizens' Freedoms and Rights, Justice and Home Affairs26

.

In addition to the stir caused in the national parliaments, Echelon was raised during Parliaments

sitting of 30 March 2000. Commissioner Liikanen announced receipt of a letter from the US

Administration denying any economic espionage27and a communication from the UK

Government claiming that UK law regulated electronic interception in detail and had beenapproved by the European Commission for Human Rights. A British Labour MEP was even

exist, but which minimised its scope (only satellite communications, i.e. 1% of international communications) in

respect of other allegations.22

Record of the sittings of the Senate, Thursday 6 July 2000, p.m. sitting no. 2-61.23De Morgen31 July 2000. The UK Ambassador to Belgium reacted to the call for proceedings before theEuropean Court of Human Rights by saying that his country had better protection of privacy than anybody (La LibreBelgique8 July 2000).24Paragraph 2.4.1. of the first STOA report to have mentioned Echelon,An appraisal of the technologies of politicalcontrol, PE 166.499/Int.St/Exec.Sum. drawn up by V. WRIGHT of the Omega Foundation, Manchester.25The resolution on transatlantic relations (paragraph 14) considered in particular that the risks of abuse, inparticular of Echelon, required protective measures concerning economic information and effective encryption (OJ

12.10.1998, c. 313, p. 98).26

See Parliaments site:http://www.europarl.eu.int/dg2/hearigs/20000222/libe/fr/default.htm.27Mr WOOLSEY, one of its former directors, did however state on 23 February 2000 that the CIA was fighting

alleged corruption by European undertakings in seeking to win foreign markets (Reuters press release onhttp://biz.yahoo.com/rf/000223/bnk.html). An in-depth investigation by the US NBC News network on 14 April2000 disputed the official argument http://www.msnbc.com/news/394993.asp?cp1=1.
http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.


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similar acts conducted on its territory by bodies of another State, and to do so before such acts

are carried out. The Institute also formally lays down that individuals must be able to dispute

extra-territorial acts affecting them.38

The debate is not confined to the international law specialists. Community law also includestexts dealing with extra-territorial telephone tapping, which cannot be unknown to the EU States

which are also parties to Echelon. The first recital in the Council resolution of 17 January 1995on the lawful interception of telecommunications is perfectly clear reaffirming the need, whenimplementing telecommunications in interception measures, to observe the right of individuals torespect for their privacy as enshrined in the territorially applicable national law. 39Having

been consulted on another Council draft resolution on the same topic, the European Parliament

noted that this resolution is not binding in nature and gives law enforcement authorities in theMember States no right of interception outside their own jurisdiction.40 Respect for territorialsovereignty is all the more topical as the draft Council of Europe convention on cyber-crime

unveiled on 27 April 2000 and negotiated with the US in particular, still allows for the possibilityof electronic seizures and searches and telephone tapping outside the territory of the requesting

State in the absence of agreement on the form international collaboration is to take41. Similar

concerns moved the European Parliament in February 2000 to delete Article 18 of the draftCouncil Act establishing the Convention on mutual assistance in criminal matters between the

Member States of the European Union as this provision would have allowed the interception of

electronic communications on the territory of another Member State without technical assistance

of that Member State42

The protection of privacy referred to in the Safe Harbour rule invokes the same principles:

pursuant to Article 26 of Directive 95/46/EC, data may be transferred to other States only if theother country ensures an 'adequate' level of protection of the right to privacy.43

Any interceptions carried out under Echelon would then be extra-territorial in their effect which

would put them in clear contravention of the most elementary principles of international law, as

well as with European law in general, whether deriving from the Council of Europe or the

38

ILI ann. Vol. 68-1, 1999, on the preparatory work for the 1998 Berlin session and in particular the draft resolution(pages 602- 605).39OJ C 329 of 4.11.1996, pp. 1-6. This resolution, drawn up in response to US pressure and sometimes known as

ENFOPOL, is a source of some concern as the States are attempting via third pillar policies to set up machineryderogating from the domestic rights protecting privacy against telephone tapping and in doing so disregarding thebasic requirements of foreseeability and accessibility (see the criticisms expressed in Recommendation 2/99 on

respect for privacy in the context of the interception of telecommunications adopted on 3 May 1999 by the Article29 working party on the protection of personal data, DG XV at the Commission, 5005/99/final, WP 18).40 Committee on Civil Liberties and Internal Affairs, report of 23 April 1999 by Mr G. Schmid on the draft Council

resolution on the lawful interception of telecommunications in relation to the new technologies,PE 229. 986/fin. P. 7.41The draft convention is available on http://conventions.coe.int/treaty/EN/projets/cybercrime.htm.42

Legislative resolution of 17 February 2000, A5-0019/2000 and the report by Mr Di Pietro of 31 January 2000 onthis draft act for the Committee on Citizens Freedoms and Rights, Justice and Home Affairs, PE 232.057/fin, pp. 38and 50-51.43

OJ. L 281, 23 November 1995, p. 11. The differences between the Union and the USA which opposes this rulehave been the focus of hard-fought negotiations (see opinions 3/2000 of 16 March 2000 and 4/2000 of 16 May 2000on the level of protection provided by the safe harbour principles given by the Article 29 working party on data

protection, 5019/00/EN/final, WP 31 and CA07/434/00/EN, WP 32). See also the draft additional protocol toCouncil of Europe Convention No 108 on the protection of individuals relating to data banks, published on 8 June2000 http://www.coe.fr/data protection/Treaties/project%20de%20 protocol%20F.htm.


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European Union44. Echelon may therefore entail a clear violation of territorial sovereignty to the

direct detriment of persons residing on the territory of non-Echelon states and in particular those

which, like Belgium, prohibit administrative telephone tapping45

. Article 53 of the EuropeanHuman Rights Convention gives precedence to domestic law over the Convention if it gives

greater protection of the rights it underpins. This is the case here as the Strasbourg Court in somecircumstances, which are not present in the Echelon case, authorises judicial and administrative

interception.

4. Echelon in conflict with the European Human Rights Convention

(a) How it contravenes the Convention

1. Protection under Article 8 of the Convention against telephone tapping andits modern variants

46

At an early stage, a dynamic interpretation of individual terms in the Convention by the bodies

applying it allowed telephone tapping to be classified as interference with the exercise of the

right to private life and correspondence guaranteed by Article 8 although not explicitlymentioned in it47. The scope of 'private life' is a broad one and may not be restrictivelyinterpreted as'the respect for private life encompasses the right of the individual to initiate anddevelop relations with others'48.

It is noteworthy that many European instruments expressly refer to Article 8 of the EuropeanHuman Rights Convention in order to indicate to States how to regulate telecommunications

pursuant to that provision49

. The explanatory memorandum to Recommendation No (95) 4 on the

44

This is echoed in the opinion of 31 May 1999 of the Belgian Council of State on the draft law relating to

computer crime, Doc. Parl. Chamber. so. 1999-2000, 50 0213/001 and 50 0214/001, pp. 45-47 and point 17 of theannex to recommendation R (95)13 of 11 September 1995 of the Council of Ministers of the Council of Europe onthe criminal procedure problems related to information technology.45 Neither the law of 21 March 1991 on certain public enterprises (Article 109b D in the title relating to

telecommunications) nor the law of 30 June 1994 on the protection of privacy against the tapping, cognisance andrecording of private communications and telecommunications (Articles 219a and 314a of the Penal code, Articles90b et seq. of the Criminal investigation code) or the organic law of 30 November 1998 on the intelligence and

security services (Article 259a (4) of the Penal code: military interceptions abroad) authorised telephone tapping byany administrative authority going beyond purely technical aspects. The Lieutenant General heading the generalintelligence service of the Belgian Army also rightly claimed before the R Committee that Echelon would be

unlawful in Belgian (De Morgen, 12.5.2000).46

The issue of telephone tapping and electronic interception is also dealt with in Article 13 of the Convention whichrecognises the right to an effective remedy, which may also be regarded as being flouted in several respects. See the

full article to appear in theRBDI.47

Klass v Germanyjudgment of 4 July 1978, 41.48See theAmann v. Switzerlandjudgment of 16 February 2000, 65. Moreover, ' there is no reason in principle whythis understanding of the notion of "private life" should be taken to exclude activities of a professional and businessnature'.49This is true of all instruments whether they take the form of conventions or resolutions of the Council of Europe

concerning privacy since Convention No 101 of 28 January 1981 for the protection of individuals in respect of theautomatic processing of personal data (http:/222.coe.fr/dataprotection/fdocs.htm). See also in Community law interalia Directive 97/66/EEC (OJ L 24, 30.1.1998). A broad interpretation of the right to respect full privacy has also

been put forward by the UN Human Rights Committee in respect of Article 17 of the International Convention onCivil and Political Rights (The right to the protection of the law against arbitrary or unlawful interference withprivacy, family, home or correspondence or to unlawful attacks on honour and reputation (Article 17), General
http://222.coe.fr/dataprotection/fdocs.htmhttp://222.coe.fr/dataprotection/fdocs.htm


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protection of personal data in the area of telecommunication services, with particular reference to

telephone services adopted by the Committee of Ministers on 7 February 1995 was very

revealing, stating that the protection established in this provision also extended to the guaranteeof the secrecy of correspondence. For the European Court of Human Rights this guarantee had to

apply to telephone conversations as well as mail. The Court's wish to make the European HumanRights Convention technologically relevant therefore had to be regarded as authorisation for

placing the whole range of telecommunication services, allowing communication orcorrespondence between subscribers or users under the protection referred to in Article 8 of the

European Human Rights Convention50.

Any interference51taken in isolation and in whatever medium used, therefore has to comply with

Article 8, in the knowledge that 'the existence . of legislation and practices authorising andestablishing a system of secret communications surveillance is in itself interference'52. It matterslittle whether the recordings made are subsequently used53. Nor is the actual content of the

intercepted communication particularly important54

. Nor does it matter much whether theintercepted calls are to or from the home or business premises; Article 8 of the Convention

applies to them all55. The same applies whether tapping aimed at one individual is carried out on

a line belonging to a third party56.

The judgment in the Klass case set out the conditions for compatibility with Article 8 with

particular vehemence, 'the cardinal issue arising under Article 8 in the present case is whetherthe interference so found is justified by the terms of paragraph 2 of the Article (Art. 8-2). This

paragraph, since it provides for an exception to a right guaranteed bythe Convention, is to benarrowly interpreted.Powers of secret surveillance of civilians, characterising as they do the

police state, are tolerable under the Convention only insofar as strictly necessaryforsafeguarding the democratic institutions'57. These principles govern both judicial andadministrative interception although there are certain individual features inherent in the latter58.

All these principles are also applicable to the memory storage of data relating to privacy59

, but

also to other methods of investigation such as the taking of fingerprints, personal searches,

asking questions about a person's private life, the taking of photographs or the keeping of records

of interviews60. Thus if all aspects of Echelon, from the initial interception down to the last detail

Observation No 16 of 8 April 1984, 8, which may be consulted on the UN High Commissariat for Human Rightssite at the following address: 'http://www.unchr.ch/tbs/doc.nsf').50

Explanatory memorandum to recommendation No R (95) 4 of the Committee of Ministers of the Council ofEurope, 29.51By definition interference implies a constraint on the right to privacy: see Coussirat-Coustere 'Article 8(2)' inLaConvention europenne des droits de l'homme Commentaire article part article, 2ndedition, Paris, Economica,1999, pp. 330.331.52One single telephone tap is enough to constitute interference as the Court ruled in its judgment Malone v. UK, 27

June 1984, 64.s53

Kopp v. Switzerland, Judgment 25 March 1998, 53.54Report of the European Human Rights Commission of 2 September 1992 quoted by P. Wachsmann, 'Les coutes

tlphoniques' under JudgmentA v. France, 23 November 1993, RTDH 1994, pp. 582-583.55Halford v UK, Judgment 25 June 1997, 44; judgment inKopp v. Switzerland, 25 March 1998, 50.56Lambert v. France, Judgment 24 August 1998, 21.57

Klass Judgment, 42. Our emphasis.58

G. Cohen-Jonathan, 'Les coutes tlphoniques' inMlanges G.J. Wiarda, Karl Heymans Verlag, Cologne, 1988,p. 100.59

Leander v. Sweden, Judgment 26 March 1987, 48; judgment inAmann v. Switzerland, 16 February 2000, 65.60

Commission report of 19 May 1994, App. No. 15225/89, Friedl v. Austria,'http:/www.dhcour.coe.fr/Hudoc1doc/herep/sift/305.txt', 49 and 52.
http://www.dhcour.coe.fr/Hudoc1doc/herep/sift/305.txt'http://www.dhcour.coe.fr/Hudoc1doc/herep/sift/305.txt'


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of data processing are liable to analysed in the light of Article 8, a provision which is being

complied with only if any interference (and there is interference in the slightest capture of any

message whatever even if there is no subsequent processing) respects three cumulativeconditions: lawfulness, legitimacy and necessity in a democratic society61.

According to the case law established by the Strasbourg Court since the Sunday Times judgment,

the statement in Article 8 that interference with the right to privacy has to be 'in accordance withthe law' means that the lawfulness requirement is complied with if domestic law, when it allows

telephone tapping or the retention of personal data, is sufficiently accessible on the one hand and

sufficiently foreseeable on the other62

.

However, even before considering whether the laws of the States taking part in Echelon are of

such a nature we have to ascertain that such laws do indeed exist. It is no easy matter to decidewhat law is applicable to Echelon (US law? On its own or in conjunction with UK law? The laws

of all the countries participating?). Too often we forget, as it all seems so pre-ordained, thatinterference in a guaranteed right, to be 'in accordance with the law' for the purposes of the

Convention, has to have a domestic legal basis (which is not always the case with English law)63,

on the one hand, and comply with the provisions laid down by domestic law, on the other64. It istrue that international law, even when it is as complex and technical as that relating to

telecommunications, may have the status of 'law' if it is sufficiently accessible, clear and

precise65. But can the secret UKUSA agreement, of which we do not know whether it regulates

interception nor if it designates which legislation applies, nor how it treats the rights of non-

founder countries which simply host an interception site on their territory, really be regarded as a'law'?

If indeed there is a 'law' governing Echelon, this law would still have to be sufficiently

accessible. The Khan judgment of 12 May 2000, the third to go against the UK on the question

of tapping, is also a first in the Strasbourg case law as it was the lack of accessibility of the

English law applying to police telephone tapping of a supposed drug dealer which resulted in a

breach of Article 8. The circulars which were followed could in fact only be consulted in the

House of Commons Library66, in which the UK Government said on 5 June 2000 in reply to a

parliamentary question the secret agreements with the US governing the administration of the

Menwith Hill base are not lodged either. Bearing in mind that section 309 of theIntelligence was

61

The legitimacy requirement is not examined here (see the article to appear in RBDI).62Sunday Times v. UKjudgment of 26 April 1979, para. 49.63

Sunday Times v. UKjudgment of 26 April 1979, para. 47. The judgments inA v. Franceof 23 November 1993,para. 38, andHalford v. UKof 25 June 1997, para. 50, both went against the respondent States because of theabsence of any domestic legal basis and, hence, of any 'law' governing the telephone tapping contested in these

cases.64

Judgment inBarthold v. Germanyof 25 March 1985, para. 48. While consideration of conformity with domesticlaw is quite exceptional in Strasbourg case law, as the Court declines to stand in for the national authorities in this

respect, it has however just been done in the judgment in Dulaurans v. France Case of 21 March 2000 on thegrounds of a clear error of assessment by the French 'Cour de cassation' which had rejected an appeal. In this respectwe should note that the Regulation of Investigatory Powers Act adopted on 25 July by the UK Parliament in clause

2.4. confines the scope for telephone tapping to conversations from, to, or within British territory. Otherwise therewould be a breach of the 'R.I.P.'.65Judgment in Groppera Radio AG and others v. Switzerland, 28 March 1990, para. 68.66

In particular because the Home Office circulars could be consulted only in the House of Commons Library: para.27 of the Khan judgment of 12 May 2000. The judgment of the third section will become final only after expiry ofthe three-month time limit for appeals to the Grand Chamber of the Court.


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provisions. In particular, the Act does not specify the precautions which should be taken withregard to those persons'71.

TheRotaru v Romaniajudgment of 4 May 2000, in a case where intelligence services recordedpolitical activities, the Court maintained these strict requirements: In order for systems of secretsurveillance to be compatible with Article 8 of the Convention, they must contain safeguards

established by law which apply to the supervision of the relevant services activities. Supervisionprocedures must follow the values of a democratic society as faithfully as possible, in particularthe rule of law, which is expressly referred to in the Preamble to the Convention. The rule of lawimplies, inter alia, that interference by the executive authorities with an individuals rights

should be subject to effective supervision, which should normally be carried out by the judiciary,at least in the last resort, since judicial control affords the best guarantees of independence,impartiality and a proper procedure.72

Does Echelon provide all the substantive and procedural safeguards required by the principle oflawfulness? We may have our doubts, especially as such a blatant breach of general international

law as arises from extraterritorial interception would be difficult to regard as compatible with

that principle.

3. Echelons violation of the principle of necessity in a democratic society

While a State's margin of appreciation of the necessity for interference in privacy, such as

telephone tapping or the keeping of records, is broad where national security is involved,discretion does not mean arbitrary powers. TheBuckleyjudgment in particular pointed out thatwhilst Article 8 contains no explicit procedural requirements, the decision-making processleading to measures of interference must be fair and such as to afford due respect to the interests

safeguarded to the individual by Article 873. But the concept of necessity above all implies thatinterference in privacy must meet an imperative need of society and should in particular be

proportionate to the legitimate goal being pursued. Thus some excessively general restrictions on

the right of prisoners to conduct correspondence have been held to be a breach of Article 874

.

In theKlasscase the Court began by noting the technical advances made in the means ofsurveillance and the development of terrorism and highly sophisticated forms of espionage. The

judgment, which dealt with administrative telephone tapping, provided an opportunity for

pointing out to States how they might use their margin for interpretation: as concerns the fixingof the conditions under which the system of surveillance is to be operated, the Court points outthat the domestic legislature enjoys a certain discretion. It is certainly not for the Court to

substitute for the assessment of the national authorities any other assessment of what might be

the best policy in this field (...). Nevertheless, the Court stresses that this does not mean that theContracting States enjoy an unlimited discretion to subject persons within their jurisdiction to

71

Amann v. Switzerlandjudgment, 16 February 2000, para. 61. The same conclusion is reached in respect of thecard which had not been destroyed when it 'had no further purpose' (paras. 75-80).72Paragraph 59 of theRotarujudgment of 4 May 2000.73

Buckley v UKjudgment of 25 September 1996, para. 76. The procedural dimension of Article 8 of the Conventionis analysed in depth in the version of this article to appear in RBDI.74Silver v UKjudgment of 25 February 1983, para. 99. The same applies to the indiscriminate opening of abankrupts mail (Foxley v UKjudgment of 20 June 2000, para. 43, especially as his lawyers letters had also beenopened). The same prohibition of the indiscriminate censure of prisoners mail was restated in respect of anassessment of lawfulness rather than necessity (Niedbala v Polandjudgment of 4 July 2000, para. 81).


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secret surveillance. The Court, being aware of the danger such a law poses of undermining oreven destroying democracy on the ground of defending it, affirms that the Contracting Statesmay not, in the name of the struggle against espionage and terrorism, adopt whatever measuresthey deem appropriate.75

At this point we may consider theexploratory and general nature of a surveillance system such

as Echelon, as denounced in the resolution of 11 April 2000 of the European ParliamentsCommittee on Civil Liberties, as a plain breach of Article 8 of the Convention. In theMiailhecase, in which a breach of that provision in the course of customs searches and seizures was

established, the Court noted that the seizures made (...) were wholesale and, above all,indiscriminate, to such an extent that the customs considered several thousand documents to beof no relevance to their inquiries and returned them to the applicants76. In theKlasscase, thefact that so-called exploratory or general surveillance is not permitted by the contestedlegislation had some influence on the Courts assessment of the conformity of the Germansystem of administrative tapping

77. Moreover, the UN Human Rights Committee also insists that

interference with the right to respect for private life and correspondence, whether it is a question

of administrative or judicial tapping, should take place only on a case-by-case basis78. The

wholesale and indiscriminate nature of the tapping and interception involved in the Echelonprogramme may thus turn out to be a breach of Article 8 of the Convention79. This will allow

Echelon to be both analysed and contested.

(b) Conditions under which Echelon may be contested

1. Whether States party to the Convention may be brought to book for

participation in Echelon

a. The vigilance requirements laid down in the Convention

The obligations States incur when acceding to the Convention do not only involve refraining

from infringing it80

. The protection of guaranteed fundamental rights also in some circumstances

requires the State to adopt, with a margin of appreciation in doing so, certain measures to ensure

the actual and specific respect of these rights: this is the theory of positive obligations81. The

positive obligations' theory focuses on the applicability of fundamental rights in relationshipsbetween individuals. Only States may of course be brought before the European Court of Human

Rights, but if a judgment is given involving behaviour of individuals that is a failure to fulfil an

75

Klass v Germanyjudgment of 4 July 1978, paras. 49 and 50. See alsoLeander v Swedenjudgment of 26 March1987, para. 60.76Miailhe v France No.1judgment of 25 February 1993, para. 39.77Klass v Germanyjudgment of 4 July 1978, para. 51.78

UNHRC general observation No 16 quoted above, paras. 4 and 8. To which add recommendation 2/99 of theArticle 29 Working Party.79

As G. COHEN-JONATHAN notes in Les coutes tlphoniques,Mlange G.J. WIARDA, Cologne, KarlHeymanns Verlag. 1988, p. 101,surveillance cannot be exploratory or general. A person has to be suspected ofhaving committed an act liable to such investigation. Authorisation for tapping therefore has to be preciselyreasoned and may relate to only one inquiry at a time. This system cannot therefore be used unless traditionalmethods of investigation are ineffective or have failed.80Marckx v Belgiumjudgment of 13 June 1979, para. 31 was the first to mention positive obligations in so manywords.81

For a recent example see the zgr Gndem v Turkeyjudgment of 16 March 2000, paras. 42-43. F. SUDRE, Lesobligations positives dans la jurisprudence europenne des droits de lhomme, RTDH 1995, pp. 363-384.


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obligation imputable to the State in question, involving its international responsibility and, where

appropriate, involving a judgment against it82.

International practice shows, while it cannot be held responsible for the behaviour of third

international parties, including foreign intelligence services simply because their activities tookplace on its territory, 'the territorial State must nevertheless remain vigilant towards events on its

territory83

'. The Interamerican human Rights Court defined this obligation perfectly and itsfamous Velasquez judgement, 'Thus, in principle, any violation of rights recognised by the

Interamerican Human Rights Convention carried out by an act of public authority or by personswho use their position of authority is imputable to the State. However, this does not define all thecircumstances in which a State is obligated to prevent, investigate and punish human rightsviolations, nor all the cases in which the State might be found responsible for an infringement ofthose rights. An illegal act which violates human rights and which is initially not directlyimputable to a State (for example, because it is the act of a private person or because the personresponsible has not been identified) can lead to international responsibility of the State, notbecause of the act itself, but because of the lack of due diligence to prevent the violation or torespond to it as required by the Convention.'84. The vigilance requirement therefore implies a

duty both to prevent the violation and to take effective action against its perpetrators85. TheEuropean Court applied similar principles in respect of serious infringements such as breaches of

Article 3 of the Convention prohibiting torture or the destruction of dwellings in contravention of

the right to respect for the home and the right of property. Even if the complaint is sufficiently

defensible, Article 13 of the Convention (right to an effective remedy before a national authority)

requires thorough and effective investigation and access by the applicant to the investigation,prosecution and punishment of the perpetrators and, if appropriate, compensation86.

Of course a State may not be held responsible for everything that occurs on its territory if it has

taken all necessary precautions to avoid a breach of the Convention87. But, unless Germany and

the UK at least officially and publicly protest against the use of their territory by foreign

intelligence services, or put an end to the use of their territory in contravention of the Convention

which has been violated by systematic policy of massive interceptions, these states would be

violating the Convention as much as general international law. Even if we admit that the duty of

due diligence on the State is watered down in the 'sovereignty' area of international relations or

in that of defence, the duty does not disappear, especially for States which have signed the

82

L. CONDORELLI L`imputation LEtat dun fait internationalement illicite: solutions classiques et nouvellestendances RCADI, 1984, VI, p. 154, studies in detail this example of the applicability of the Human Rights

Convention in relations between individuals and rightly concludes that what is involved here is the implementationof a traditional duty of vigilance, as the establishment of the international responsibility of the State does not in anyway depart from the rules the UN International Law Commission is seeking to codify; moreover, by acceding to an

agreement to protect human rights a State may perfectly well be subscribing to rules imposing more onerousresponsibilities.83J. SALMON and P. KLEIN,Responsabilit internationale, t. I, Presses Universitaires of Bruxelles, 1998-1999, p96.84InterAmerican Human Rights Court, Velasquez v. Hondurasjudgment of 29 July 1988, 172, extracts in.R.G.D.I.P.1990, p 467, preceded by commentaries by G. COHEN-JONATHAN.85

P. APRAXINE, 'Violation des droits de l'homme par une organisation internationale et responsabilit des Etats auregard of la Convention europenne',R.T.D.H.1995, p 27.86See judgments for 1998 concerning Article 13 by P. LAMBERT, 'the European Human Rights Court - 1998',

J.T.D.E.1999, p. 39-40, and the Selmouni v. Francejudgment of 28 July 1999, 79;Ihlan v. Turkey of 27 June 200097 and Salman v. Turkey 27 June 2000, 121;87Plattform 'rzte fr das Leben'judgment of 21 June 1988, 34.


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Convention. When, as would appear to be the case with the Echelon programme, a State, from its

own territory, conducts telephone tapping by its secret services or allows other countries'

services to do so, if it is aware of the fact and has not reacted, this can bring its internationalresponsibility into play. The same may apply when that state 'repatriates' the product of

interceptions carried out by another State on its behalf, because in general international law thereis 'every State's obligation not to allow knowingly its territory to be used contrary to the rights of

others'88

.

The very nature of the obligations incurred by the States party to the European Human Rights

Convention amplify this duty of vigilance89

. These are objective obligations90

as confirmed in

the European Commission for Human rights' famous decision in Austria v. Italy91. It is thestructure which gathers together these objective obligations and the system of collective

guarantees which protects them which make the Convention 'a constitutional instrument ofEuropean public order (ordre public)' in the strong words contained in 1995 in the Loizidou v.Turkeyjudgment92. This also explains the primacy of the Convention over any other domestic orinternational norms.

b. The primacy of the Convention over other international acts of the Statesparty to it

The former European Human Rights Commission and the Court had several opportunities to

consider the compatibility with the Convention of international or cross-border acts of States93.

They did not hesitate to charge States parties to the Convention with infringement in casesarising from relationships between individuals and in disputes arising from the way in which a

State conducted its international relations. If the failure to fulfil a duty of vigilance falls withinthe traditional territorial responsibility, an extension of jurisdiction (within the meaning of

Article l of the Convention) beyond national territory may also spring from an equally traditional

theory: 'the term "jurisdiction" is not limited to the national territory of the High ContractingParties: their responsibility can be involved because of acts of their authorities producing effectsoutside their own territory'94. Intercepting a conversation in Belgium from the Menwith HillAnglo-US base involves the responsibility of the UK in respect of the Convention, and the fact

that the US is not a party does not in any way lessen the former's obligations.

88ICJ, Corfu Channel case, 1949, p 18.89See communication by G. COHEN-JONATHAN on 'responsibility for breaches of human rights in laresponsabilit dans le systme international, Le Mans, Symposium of the Socit Franaise du Droit International,Paris, Pedone, 1991, p. 101-135.90

J.F. FLAUSS, 'the protection of human rights and the sources of international law' in. 'Laprotection des droits del'homme et l'volution du droit international, Strasbourg Symposium of S.F.D.I., Paris, Pedone, 1998,p. 24-28.91

European Human Rights Commission decision of 11 January 1961, App. No. 788/60,Austria v. Italy, p 141.92

Loizidou v. Turkeyjudgment of 23 March 1995 on preliminary objections, 75.93See in particular H. DIPLA, la responsabilit de l'Etat pour violation des les droits de l'homme Problmesd'imputation, Paris, Pedone, 1994.94

Drozd and Janousek v. Spain and FranceJudgment of 26 June 1992, 91; judgment on preliminary objections intheLoizidou v. Turkeycase of 23 March 1995, 62.


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In fact the imputability to a contracting party to the Convention of a failure to comply with it

may result from either an export violation starting from its territory (for example in extradition

cases where an individual on the territory of one party might be liable to the death penalty ortorture in the applicant country95) or a violation imported into that States territory (for example

where the court on the spot has to apply a foreign rule in private international law or a criminalconviction delivered abroad96). As Pierre Apraxine summed it up so well, 'in the event of

flagrant and obvious violations already committed or genuine risks of violations, supported byserious grounds for believing in its existence, the Court shall lay down that States must refrainfrom providing assistance either by allowing the performance of the contested act or byexecuting it via their own legal system' 97. The conditions for an obvious, flagrant and wholesaleviolation of the Convention would seem to be abundantly present if we consider the philosophy

of the Echelon programme which is said to be able to intercept most continental

communications, under inaccessible and vague rules which persons not residing on the territoryof the participating countries have no means of contesting.

More fundamentally, the transnational dimension of a violation of Article 8 of the Convention

may be the result of the way in which a State conducts its international relations on its territory

when the contested act relates to the State's own actions in its relations with an internationalorganisation or a third state98. TheMatthews v. UKjudgment of 18 February 1999 concerningthe failure to organise European Parliament elections on the territory of Gibraltar did not hesitate

to voice the primacy the Court gives to the Convention even where a State is a party to other

international treaties: Para 29 - Article 1] makes no distinction as to the type of rule ormeasure concerned, and does not exclude any part of the member States' jurisdiction from

scrutiny under the Convention (see the United Communist Party of Turkey and Others v. Turkeyjudgment of 30 January 1998) . Para 32. Acts of the EC as such cannot be challenged before theCourt because the EC is not a Contracting Party. The Convention does not exclude the transferof competences to international organisations provided that Convention rights continue to besecured. Member States responsibility therefore continues even after such a transfer. Para 33() The United Kingdom, together with all the other parties to the Maastricht Treaty, isresponsible ratione materiae under Article 1 of the Convention and, in particular, under Article3 of the Protocol No. 1, for the consequences of that Treaty. 99

The Convention therefore applies even in cases where it is a question of assessing the

conformity with it of the acts of a Contracting Party State, even by treaty or agreement, in theframework of its relations with other subjects of international law. This is because the State is

still responsible for its own acts and omissions in respect of the European Human RightsConvention which by virtue of Article 53 thereof takes precedence over its other international

95For example, the Soering v. UKjudgement of 7 July 1989, para 91, or Chahal v UKof 15 November 1996judgement, para 94. and lastly theJabari v. Turkeyjudgment of 11 July 2000, para 38.96TheDrozd and Janousekjudgment (para. 110) does however reserve this hypothesis for cases of flagrant denial ofjustice; P. Courbe, Private international law and the problems of incorporating the Convention in to the Frenchsystem in P. Tavernier (dir.). Quelle Europe pour les droits de lhomme?Brussels, Bruylant, 1996, pp 249-267.97P. Apraxine, op. Cit. P. 27-28.98

See P. Klein, the responsibility of international organisations in internal legal systems and international law,Brussels, Bruylant, 1998, p. 470-480. Even though the UK/USA does not seem to have set up an internationalorganisation whose personality could not in any case be challenged by third parties, the State is still responsible for

its own acts even if they were in relation to an act by such an organisation.99

See, on the same day, theBeer and Regan v. Germany and Waite and Kennedy v. Germanyjudgments onimmunity from the jurisdiction of the courts of the European Space Agency on German territory.


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commitments if they are less protective of the rights and freedoms it guarantees100. The

Convention by virtue of its special nature, ranks above its Party States' other international

commitments even where they were entered into with other States101

.

In the case of the United Kingdom which would appear not to have confined itself to acting ashost for a listening station (like Germany) but has taken an active part in tapping and

interception, its international responsibility is involved not only for having allowed actsequivalent to violations to be perpetrated from its territory by non-Party States; it is said itself to

be directly violating the Convention by using its own services acting within the Echelon

programme to tap and intercept communications throughout Europe.

2. Admissibility of action against Echelon

a. The status of potential victim in the event of secret infringement of the right

to respect for private life.

The risk of violation of the rights to respect for private life and correspondence which we all run

by using public or private telecommunication services is difficult to foresee. Individuals wishingto apply to the European Court of Human Rights have to prove that they have been the victims of

a violation of the Convention within the meaning of Article 34 thereof. The prohibition of actiopopularisin European legal systems would also appear to rule out the admissibility ofapplications made by associations seeking to defend collective interests.102. Legal persons may

however lodge applications if they can prove they are victims of a breach of Article 8, whichimplies that the guaranteed rights are compatible with the nature of such persons103.

The Court declines to assess in abstracto the conformity of a law or internal practice with theConvention. TheKlassjudgment did however apply the concept of a potential victim in respectof secret surveillance measures such as phone tapping: 'In principle, it does not suffice for anindividual applicant to claim that the mere existence of a law violates his rights under theConvention; it is necessary that the law should have been applied to his detriment. Nevertheless,(...) a law may by itself violate the rights of an individual if the individual is directly affected bythe law in the absence of any specific measure of implementation' 104. The Court goes on toconsider that the secrecy of the measures objected to should not stand in the way of theeffectiveness of the Conventionwhich'implies in such circumstances some possibility of havingaccess to the Commission (...). The Court therefore accepts that an individual may, under

100

V. Coussirat-Coustere, European Human Rights Convention and domestic law: primacy and direct effect inLaConvention europene de droits de lhomne, Brussels, Nemesis, 1992, pp. 18-19.101 See in particular the basic study by G. Cohen-Jonathan, relationships between the European Human Convention

and the other treaties concluded by Contracting Party States in Essays in honour of H.G. Schermers, III, p. 79-111.102

European Commission of Human Rights inadmissibility decision of 16 April 1991 App. No. 1504/89Purcelland others v. Ireland, DR70, p. 262. On the same topic L.E. Pettiti and O. De Schutter, The role of associations inthe framework of the European and Human Rights Convention,J.T.D.E. 1996, p. 145-150.103 European Human Rights Commission, inadmissibility decision of 14 January 1998, App. No. 32200/96 and32201/96,Herbecq and association League des droits de lhomme v. Belgium, ECHRvol. 41, 1998, p. 63. Refusedto recognise as a victim an association which on the basis of Article 8 contested the absence of legislation ofsurveillance systems in public places on the grounds that a legal person cannot be filmed and cannot therefore be avictim of the use of cameras. The case of telephone tapping should be different especially when it results in the

electronic storage of data on undertakings commercial policies, in particular if a company loses a market because arival had been informed of its intentions by intelligence services.104Klass v. Germanyjudgment of 4 July 1978, 33.


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certain conditions, claim to be the victim of a violation occasioned by the mere existence ofsecret measures or of legislation permitting secret measures, without having to allege that suchmeasures were applied to him'105. Even more specifically, 'any of the permitted surveillancemeasures, once applied to a given individual, would result in an interference by a publicauthority with the exercise of that individual's right to respect for his private and family life andhis correspondence. Furthermore, in the mere existence of the legislation itself there is involved,

for all those to whom the legislation could be applied, a menace of surveillance; this menacenecessarily strikes at freedom of communication between users of the postal andtelecommunications services and thereby constitutes an 'interference by a public authority' withthe exercise of the applicants' right to respect for private and family life and for correspondence'106.

Following on from this case law on the status of 'potential victim', which is not voluminous butdoes vigorously protect the individual 107, theRotarujudgment, referring explicitly to the Klass

judgment, stated that 'a decision or measure favourable to the applicant is not in principlesufficient to deprive him of his status as a 'victim' unless the national authorities haveacknowledged, either expressly or in substance, and then afforded redress for, the breach of the

Convention'108. In May 2000 the Court was therefore still authorising individuals to claim thatstatus which, having been reaffirmed in a case of data recording by intelligence services, will be

all the more important in contesting Echelon.

b. Echelon constitutes a body of administrative practices whose existence

requires the exhaustion of domestic remedies

The principle of the prior exhaustion of domestic remedies before any action may be broughtbefore the European Court of Human Rights is set out in Article 35(1) of the European Human

Rights Convention. This general principle of international law seeks to allow the State to

remedy alleged breaches109

; complaints based on violation of the Convention should at least

have been raised in substance before the national courts in compliance with the formal

requirements and time-limits laid down in domestic law110

. This principle does involve a

number of limits or exceptions in the legal system appertaining to the Convention: if there is no

adequate legal channel; if no adequate legal channels are open to the applicant; if there is no

chance of success with existing remedies; if special circumstances make remedies impossible orpointless; if unlawful 'administrative practices' make the use of any remedy pointless111. We shall

be considering the latter hypothesis alone here. Actions within the framework of a global

105

Klassjudgment, 34. See alsoMalone v. UK of 27 June 1984, 86, which allowed the applicant to claim to be avictim of metering of telephone calls, simply because the applicant was a member of a class of persons potentiallyliable to be directly affected by this practice, quite apart from any concrete measure of implementation taken against

him. As regards the difficulties of proof see theHalford v. UKjudgment of 25 June 1997, 57 to 60.106

Klass v. Germanyjudgment of 4 July 1978, 41.107In respect of other applications: G. COHEN-JONATHAN,Aspects europens des droits fondamentaux, 2ndedition, Paris, Montchrestien, 1999, p. 28-29.108Rotaru v. Romaniajudgment of 4 May 2000, 35 and references to earlier cases.109P. TAVERNIER, The scope of the supervisory body in Linterprtation de la Convention europenne des droitsde lhomme, Brussels, Nemesis et Bruylant, 1998, p. 184-187.110

Ahmet Sadik v. Greecejudgment of 15 November 1996, 30.111E. PICARD, Article 26 , in. LE. PETTITI, E. DECAUX and H. IMBERT, La Convention europenne desdroits de lhomme Commentaire article par article, 2nd edition, Paris, Economica, 1999, p. 603-610. Also D. deBRUYN, ' Exhaustion of domestic remedies', inLa procdure devant la nouvelle Cour europenne des droits delhomme aprs le Protocole n 11, Bruxelles, Nemesis and Bruylant, 1999, p. 57-60.


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electronic surveillance programme such as Echelon are claimed to be a body of administrative

practices whose existence removes the need, before approaching the European Court of Human

Rights, to exhaust any remedies established by the domestic law of the countries, which aremoreover contracting parties to the Convention, taking part in that programme 112.

TheIreland v. UKjudgment had already established in connection with an inter-state application

that 'in principle, the rule does not apply where the applicant State complains of a practice assuch, with the aim of preventing its continuation or recurrence, but does not ask (...) the Courtto give a decision on each of the cases put forward as proof or illustrations of that practice 113.This notion of administrative practices was extended to individual applications by the case law

of the old Commission 114. Nor does the Strasbourg Court see any objection to an individual or

individuals claiming that the existence of administrative practices or the like should relieve them

of the need to exhaust domestic remedies. In theAkdivar and others v. Turkeycase it ruled that'there is no obligation to have recourse to remedies which are inadequate or ineffective. Inaddition, according to the "generally recognised rules of international law" there may be specialcircumstances which absolve the applicant from the obligation to exhaust the domestic remediesat his disposal. The rule is also inapplicable where an administrative practice consisting of a

repetition of acts incompatible with the Convention and official tolerance by the State authoritieshas been shown to exist, and is of such a nature as to make proceedings futile or ineffective'115.The definition of an 'administrative practice' laid down in theIreland v. UKcase is unambiguous'A practice incompatible with the Convention consists of an accumulation of identical oranalogous breaches which are sufficiently numerous and inter-connected to amount not merelyto isolated incidents or exceptions but to a pattern or system; a practice does of itself constitute aviolation separate from such breaches'116.

Professor Picard has summed up the conditions for it to exist 117. The first is the gravity of theviolation of the Convention by the contested acts, that gravity to depend on both the flagrancy ofthe violation and the importance of the rights violated. In the light of the European Court ofHuman Rights' consistency and rigour in its case law, treating secret surveillance of the citizens

as a characteristic of a police state, the importance of the rights that have been violated cannot be

in doubt. The outrage at the existence of Echelon felt in national parliamentary circles in Europe

and the US and the European Parliament is also indicative of the flagrancy of the violations. The

second condition for the existence of an administrative practice is the repetition of the violations.As we have seen, the Court feels that any interception is an interference in itself which can only

be sanctioned if each instance of the interception of individuals' communications takenseparately meets the three cumulative requirements of lawfulness, legitimacy and necessity; the

Echelon programme seems to be a pattern or a system itself. The third and final condition is 'thetolerance of these facts by the respondent state, this itself being a result of the absence of any

significant response by the national authorities in a serious attempt to put an end to it; (...) it112For amplification see the Article to appear inR.B.D.I., especially as regards the judgment of 1 July 1999 by theInternational Court of the Law of the Sea in the Sagacase which considered that where a State had exercised its'jurisdiction' (in this case arrest outside territorial waters) in breach of international law, there was no need toexhaust the remedies provided by the law of that country.113

Ireland v. UKjudgment of 18 January 1978, 159.114

K. BOYLE and H. HANNUM, Individual applications under the European convention on Human rights andthe concept of administrative practice : the Donnelly case ,A.J.I.L.1974, pp 440-453.115

Akdivar and others v. Turkeyjudgment of 16 September 1996, 88 and 67.116

Ireland v. UKjudgment of 18 January 1978, 159.117E. PICARD, Article 26 , op.cit., p 809.


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would appear that the very existence of these practices, once they are sufficiently widespread,may lead to an assumption of tolerance, governments not being entitled to plead eitherignorance of the activities nor their inability to put a stop to them'. The various denials arehardly convincing now 118.

* * * * *

'Powers of secret surveillance of citizens, characterising as they do the police State, aretolerable under the Convention only in so far as strictly necessary for safeguarding thedemocratic institutions' 119. That is the view the European Court of Human Rights has taken oftelephone tapping since 1978. The 'international' character of such interception does not change

anything or, as Professor Sudre put it so well, 'European public order could not tolerate asituation in which these values might be ignored on the territory of a contracting party State onthe grounds that doing so was the result of a foreign judgment or act' 120. The Echeloninternational programme goes far beyond the need for the interception of telecommunications, in

a democratic society, the strict conditions governing which have just been repeated again by the

European Court of Human Rights in 2000 in its Amann v. Switzerland, Rotaru v. RomaniaandKhan v. United Kingdomjudgments, all three of which went against the respondent State. Whilethe Strasbourg case law, henceforth applied in the new context of Protocol No 11, occasionally

runs into turbulence, it is a field in which increasing protection on principle for the individual is

a constant factor: protecting privacy against secret surveillance 121. This in singular contrast with

the proliferation of public and private interference with the right to respect for private life ofwhich Echelon is only one example. But what an example

118The UK Prime Minister simply stated that 'the United Kingdom had not betrayed its European partners by itsclose collaboration with the United States (La Libre Belgique24.2.2000 andLe Monde25.2.2000).119Klass v. Germanyjudgment op. cit., 42 and lastly, theRotarujudgment ( 47).120F. SUDRE, Existe-t-il un ordre public europen ?, in P. TAVERNIER (dir.), Quelle Europe pour les droits delhomme, Bruxelles, Bruylant, 1996, p 79.121

For some time judgments have clearly tended to increase the duties on States (in particular by a very protectiveinterpretation of the right to effective remedy provided by Article 13 of the Convention) and to relax the procedural

requirements for applicants contesting systematic violations of the Convention: J. F. FLAUSS, 'La Cour deStrasbourg face aux violations systmatiques des droits de lhomme', inMlanges P. LAMBERT, Brussels, Bruylant,2000, pp 348-353.


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New .eu Domain

Changed Web and E-Mail Addresses

The introduction of the .eu domain also required the web and e-mail addresses of the European institutions to be adapted. Below please find a

list of addresses found in the document at hand which have been changed after the document was created. The list shows the old and newlist of addresses found in the document at hand which have been changed after the document was created. The list shows the old and new

address, a reference to the page where the address was found and the type of address: http: and https: for web addresses, mailto: for e-mailaddress, a reference to the page where the address was found and the type of address: http: and https: for web addresses, mailto: for e-mailaddresses etc.addresses etc.

Page: 6

Type:http:

Old: http://www.europarl.eu.int/dg2/hearigs/20000222/libe/fr/default.htm.

New: http://www.europarl.europa.eu/dg2/hearigs/20000222/libe/fr/default.htm.

"Echelon" and Europe. TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM. September 2000.

Documents

Transcript of "Echelon" and Europe. TEMPORARY COMMITTEE ON THE ECHELON INTERCEPTION SYSTEM. September 2000.