Blog Symposium on Protocol 15 ECHR - The Court: Criteria for Office and Relinquishment

Lize R. Glas, Faculty of Law, Radboud University 

 

In this blog post, I will discuss two amendments that Protocol 15 will bring. These two amendments concern the criteria for office, more specifically the age limit of candidates for office, and the relinquishment of jurisdiction by a Chamber to the Grand Chamber.  

 

Criteria for office  

 

Currently, paragraph 2 of Article 23 ECHR stipulates that the terms of office of the Strasbourg judges expire when they reach the age of 70. This age limit was introduced by Protocol 11, and the rationale behind it was that ‘most domestic legal systems’ knew an age limit.  

 

Protocol 15 will delete paragraph 2 of Article 23 ECHR and will insert the following paragraph into Article 21 ECHR ‘Candidates shall be less than 65 years of age at the date by which the list of three candidates has been requested by the Parliamentary Assembly …’. Consequently, the maximum age of a Strasbourg judge increases from 70 to 75. This amendment aims to prevent experienced judges from having to leave office before they completed their term, thus reinforcing ‘the consistency of the membership of the Court’ (see also here) and potentially decreasing the turnover of judges.  

 

The practical significance of this amendment is probably limited, considering that the average age of a judge has dropped from about 65 to 56 on 25 May 2021, with the youngest judge being 37 (judge Yüksel) and the oldest judge being 68 (judge Pejchal). Eight judges are still in their forties. As a side-effect of Protocol 15 however, the average age of the judges may increase considering that the maximum age has increased. Currently, only two judges will need to retire because they turn 70 before their term expires (judges Ravarani and Zünd). The entry into force of Protocol 15 comes too late for them however, because the amendment will only apply to judges elected after the protocol’s entry into force. 

 

This amendment is uncontroversial and is on a par with the increasing life expectancy and, connected with that, the ‘trend of rising retirement ages’ in domestic systems, although ‘international tribunals do not, as a general rule,’ establish an age criterion. The Court welcomed the new criterion, noting that it ‘should be beneficial in future by fostering the election of very highly experienced candidates as judges, whose services may be retained beyond an age limit that no longer seems imperative in the present day’ (see also here).  

 

The only point of discussion after the adoption of the Brighton Declaration seems to have been when exactly a judge should be younger than 65. The Brighton Declaration proposed ‘at the date on which their term of office commences’. The drafters of Protocol 15 turned this into: ‘at the date by which the list of three candidates has been requested by the Parliamentary Assembly’. The reason for departing from the Brighton Declaration was that the ‘process leading to election of a judge … is long’, which necessitated avoiding that a candidate is ‘being prevented from taking office for having reached the age limit during the course of the procedure’.   

 

A question that remains with me is whether the states, when drafting the Brighton Declaration, ever considered returning to the text of the original Convention, which did not include an age limit. Deleting the age limit altogether has the potential of reinforcing the consistency of the Court’s membership, in the same way as the current amendment will probably do. Moreover, letting go of the age limit would have brought the criteria for office more in line with those of other international courts and would have made the Convention more future proof in case the life expectancy continues to increase in Europe. Additionally, it would have ended to ‘the discretionary age limit for judges’, which is, according to Schabas, ‘in itself incompatible with article 14 of the Convention and Protocol No. 12’.   

 

Relinquishment  

 

A Chamber can relinquish jurisdiction to the Grand Chamber when a case raises a serious question affecting the interpretation of the Convention (Article 30 ECHR) and must do so when the Chamber judgment might have a result inconsistent with a previous judgment (Rule 72(2) of the Rules of Court). Especially in the latter scenario, the Grand Chamber is ‘[t]he Convention mechanism for avoiding inconsistency in the case-law’. This is an important task, because even though the Court lacks a formal doctrine of precedent, it ‘has long recognised that “it is in the interests of legal certainty, foreseeability and equality before the law that it should not depart, without cogent reason, from precedents laid down in previous cases”’.  

 

Currently, the parties have the right to object to relinquishment. Despite the requirement in Rule 72(4) of the Rules of Court that the objection is ‘duly reasoned’, the right comes down to a veto, since it is ‘sufficient for one of the parties to indicate that it wishes to have the case examined by a Chamber’. Protocol 11 gave the parties this right, because the terms of reference that the Committee of Ministers formulated in 1993 for the drafters of the protocol included the requirement that the new court had to be able to engage in ‘a re-hearing in exceptional cases’. By giving the parties this right, they could protect their right to request a re-hearing by the Grand Chamber (Article 43 ECHR). Apart from protecting its right to request referral, another reason for a party to object to relinquishment may be that it has an ‘interest in delaying the proceedings’.  

 

Protocol 15 will remove the right to object to relinquishment. The Court proposed this amendment and the states parties took this idea up in the Brighton Declaration. The first aim of the amendment is to ‘contribute to consistency in the case-law of the Court’. The other is to accelerate ‘proceedings before the Court’. The latter aim could be achieved because the parties have one month to object to relinquishment (Rule 72(4) of the Rules of Court). Additionally, time and resources will be saved, because one in three cases in which a Chamber could not relinquish jurisdiction because a party objected ended up before the Grand Chamber eventually as a result of referral.* This is not surprising, considering that the requirements for relinquishment and referral are comparable. 

 

In numerical terms, the amendment will not be very significant. Not many cases are relinquished (2 in 2020, 5 in 2019 and 2018, 6 in 2017 and 2 in 2016) and it is even less common that a party objects to relinquishment. This happened twelve times during the twenty-three years that have passed since Protocol 11 entered into force.* Still, each additional Grand Chamber judgment that can be adopted as a result of the amendment should be welcomed, because these judgments are particularly authoritative. To illustrate: Lord Hope of the UK Supreme Court described a unanimous decision of the Grand Chamber as ‘in itself, is a formidable reason for thinking that we should follow it’.  

 

Interestingly, the drafters of Protocol 15 express three expectations in connection with the amended Article 30 ECHR. First, they expect ‘that the Chamber will consult the parties on its intentions’. The Court has agreed to ‘accommodate’ this. Consequently, although the parties no longer have the right to object to relinquishment, they will still have the opportunity to give input.  

 

Second, the drafters write that ‘it would be preferable for the Chamber to narrow down the case as far as possible, including by finding inadmissible any relevant parts of the case before relinquishing it’. In response, the Court explains that its current practice is ‘to consider issues of admissibility and merits simultaneously’, as is envisaged by Article 29(1) ECHR. The Court adds that it is ‘of course open to a Chamber to dispose of part of an application by means of an admissibility decision and then to relinquish jurisdiction in favour of the Grand Chamber’. In this respect, the Court also points out that is has amended Rule 27A of the Rules of Court (single-judge formation), making it possible ‘for Presidents of Section, when communicating a case to the Government, to simultaneously strike out any manifestly ill-founded or plainly inadmissible complaints from a file’. According to the Court, this amendment contributes to a more focused procedure before the Grand Chamber if a case is relinquished. In short, the Court seems to agree that narrowing down a case is important, but proposes to do this during the process of communicating a case rather than at a later procedural stage.   

 

Lastly, the drafters expect ‘that the Grand Chamber will in future give more specific indication to the parties of the potential departure from existing case-law or serious question of interpretation’. It is probably hard for the Court to fulfil this expectation, because it requires the Court to share a glimpse of its judgment with the parties before it has even adopted its judgment. Moreover, this request could, like the invitation in the Brighton Declaration to make rulings available to the parties ‘a short period of time before their delivery in public’, ‘undermine the important principle of secret deliberations’. Perhaps for these reasons, the Court does not give in to this request. Instead and although admitting that it is important that the parties know what issues they should address ‘in depth before the Grand Chamber’, the Court notes these issues should be ‘clear enough’ in most cases and, if not, a party ‘may raise the matter with the Court's Registry, which can provide assistance’. 

 

Final remarks 

 

The Court welcomed the amended age criterion for office and proposed the amendment regarding relinquishment itself. Therefore, the Court is probably eagerly awaiting the day on which they take effect. As a probable consequence of these amendments, more judges can finish their term, older judges are elected, relinquishment takes place more often and the Grand Chamber adopts more judgments. On a more abstract level, the two reforms potentially contribute to enhancing the consistency of the Court’s membership and case law. Neither these two amendments nor any of the other changes that Protocol 15 brings will ‘fundamentally change the Convention system’s object and purpose’ however. 

 

* The figures about objections to relinquishment are based on two HUDOC searches in all Chamber judgments adopted in the period: 1 November 1998 - 25 May 2021. The first search used the word ‘relinquish’; the second the word ‘dessaisir’.

Blog Symposium on Protocol 15 ECHR - Yesterday’s Solutions for Yesterday’s Problems?

Janneke Gerards, Montaigne Centre for Rule of Law and Administration of Justice, Utrecht University 

 

Towards Protocol 15 

 

About fifteen years ago, European fundamental rights scholars, judges and politicians were confronted with a new reality. Until then, most scholars had admired the way in which the European Court of Human Rights managed to develop influential human rights doctrines. National politicians and judges were keen to make use of the legal arguments offered by the Court’s case-law, and victims of human rights violations increasingly found their way to the Court to obtain individual redress. Of course, criticism of the Court’s work could be seen, but in the first decades of its existence, the Court’s supporters seemed to outnumber its critics by far. 

 

By the turn of the millennium, the tables slowly seemed to turn: Domestic concerns about different aspects of the European project were on the rise. At first these seemed to be mainly about the European Union, culminating in a resounding rejection of the European Constitutional Treaty in the Netherlands and France. But then they started to spill over to the Convention and the ECtHR, fuelled by a number of controversial judgments on prisoners’ voting rights, social security and migration matters. A famous manifestation of the criticism levelled at the Court was a 2009 speech by Supreme Court judge Lord Hoffmann, in which he argued that the ECtHR was going too far by imposing overly extensive Convention interpretations on the States, thereby impinging on their sovereignty. Especially in the United Kingdom, politicians were eager to embrace such criticism, at some point making it a realistic prospect that the UK would leave the Convention. Moreover, the message was quickly picked up by other domestic scholars, judges and politicians, even in States that had always been regarded as particularly loyal to the European project, such as the Netherlands. They, too, increasingly expressed concern about the Court’s evolutive and dynamic interpretation, its purported lack of respect for the subsidiarity principle, and its generally activist stand that made the Convention go beyond what the States had consented to. It has been well-documented that such criticism spread in many States, even if its origins and manifestations greatly differed. 

 

The Brighton Declaration and Protocol 15 

 

The surge of antagonism towards the Court culminated in the famous Brighton Conference of 2012, where the European government leaders sat together to discuss how it could be properly addressed. One main solution that they conceived of was to make a change to the Convention by drafting a new Protocol – Protocol 15 – to add a new recital to the Preamble, which would help to clearly define the respective roles of the States and the Court. This recital would read as follows: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.’ It was hoped by many of the Court’s critics that such a clear recital would make the Court understand that it should leave sufficient leeway to national laws, policies and decisions, and not intrude on national sovereign choices. 

 

Changed problems, challenges and issues 

 

Roughly eight years on, on 1 August 2021, Protocol 15 will enter into force, making the recital an actual part of the Convention. But what seemed to be an extremely urgent (as much as dividing) instrument in 2013, now appears to have lost much of its bite. In recent years the criticism of the Court in the Netherlands has largely died down, while the UK has focused much (albeit certainly not all!) of its attention at the EU rather than the ECHR. Although there have been some efforts to revive the type of criticism that triggered the Brighton Declaration and Protocol 15, they have hardly succeeded, as is testified by the 2018 debate surrounding the Copenhagen High-Level Conference and the much toned-down version of the Copenhagen Declaration that followed on this. 

 

Indeed, over the past years, concerns about compliance with the Convention and implementation of the Court’s judgments seem to have shifted. All eyes are now on Russia, which ever more openly defies the Council of Europe and the Convention system, and will refuse to comply with ECtHR judgments if they are contrary to the Russian constitution. They are on Turkey, where the human rights situation is highly worrying ever since the attempted coup in 2016, and where President Erdogan has stated that the Court’s judgments are not binding. Our eyes are on Azerbaijan, where the Court has found ‘a troubling pattern of arbitrary arrest and detention of government critics … in defiance of the rule of law’, yet the government does nothing to implement the Court’s judgments (regardless of the Court’s 2019 express holding that it thereby does not fulfil its obligations under the Convention). And they are on Poland, Hungary and other States where the independence of the judiciary and other rule of law guarantees are systematically broken down, the Court’s judgments and many other Council of Europe efforts notwithstanding. 

 

On top of these highly worrying developments, the need to fight the corona virus has created yet another challenge. In many States, emergency regimes are currently used to allow for restrictions of important fundamental rights guarantees, often disrespecting important rule of law values. It is very likely that such ‘temporary’ measures and restrictions will have a great impact on the protection of Convention rights for many years to come. 

 

The origins and manifestations of these new challenges to European protection of fundamental rights are complex and multifaceted, and it is to be expected that the Convention bodies will have to invest a great deal of time and effort in finding innovative and smart ways to continue to protect he Convention rights effectively. It is improbable that a highly rhetorical Preamble recital – which in fact does no more than simply restating the well-recognised notions of subsidiarity and the margin of appreciation – can contribute to solving these pressing problems in any meaningful way. 

 

Changes in the Court’s approach 

 

In the meantime, the Court itself has been working hard to deal with the domestic criticism and retain and increase the legitimacy of its judgments, although scholarly findings differ as to how it has done so and to what extent its judgments reflect a real change of strategy. Several scholars have endeavoured to show that ‘Brighton’ can be regarded as an ‘exogenous shock’ or a ‘turning point’ that has brought about considerable change in the Court’s jurisprudence. They have collected data showing that ever since Brighton, the Court has referred to the margin of appreciation and the principle of subsidiarity more often and it seems to use these notions to show deference to the States Parties in a more ‘robust’ manner. Other scholars have argued that the Court has responded to national sensitivities in different ways, e.g. by using an incremental, piecemeal approach to work change, relying on procedural review, adopting an approach of variable geometry, or making strategic use of admissibility decisions. According to some research, the Court nowadays mainly uses such other techniques to strategically shape its supervisory role; even if it seems to refer to the margin of appreciation doctrine more frequently, these references are of an increasingly empty and rhetorical nature. Moreover, a number of scholars have submitted that the Court’s approach towards the subsidiarity principle is complex and multifaceted, it is constantly developing, changing and adapting to new developments, and, on balance, there are signs that the Court’s review is not more deferential than it was before the ECtHR. 

 

Hence, even if the Brighton process may have had a tangible impact on the Court’s judicial strategies and the awareness with the Court’s judges of the domestic reception of their reasoning, there is significant evidence showing that that the Court has moved beyond the stage of making easy references to subsidiarity and the margin of appreciation to help it find an adequate response. In fact, its present-day judicial tactics are much more sophisticated, nuanced and refined than the new recital to the Preamble would seem to suggest. 

 

Conclusion 

 

Considering all this, it is questionable if the entry into force of Protocol 15 to the Preamble will have any measurable impact. The nature and location of national discontent and problems of disrespect of the Convention have changed too much to make the notions of subsidiarity and the margin of appreciation into useful and practicable tools to address them. Moreover, even if the complex notion of subsidiarity still is a cornerstone of the Court’s case-law and it is often referred to in the Court’s judgments, it seems that it has found many other ways to deal with national sensitivities and criticism than by simply leaving them a margin of appreciation.

 

Thus, the idea of adding the notions of subsidiarity and the margin of appreciation to the Preamble may seem to have been a sound response to a crisis that was much alive a decade ago, but it has now been replaced by very different issues and problems, and is solved in other ways. Indeed, the Protocol seems to have codified yesterday’s solutions to yesterday’s problems, but it will not help to address those of today, let alone those of tomorrow.

Blog Symposium on Protocol 15 ECHR - Introduction

Antoine Buyse and Kushtrim Istrefi

 

The wheels of international law often turn slowly. And so do negotiations leading to treaties or amendments of those. But even once adopted, many years may pass before entry into force. The addition of Protocols to the European Convention of Human Rights is no different in this respect. Protocol 15, introducing a number of procedural reforms and emphasizing subsidiarity and the margin of appreciation, was adopted as far back as 2013. And only this year, 2021, with the ratification by Italy as the last state party, will it finally enter into force. 

As editors of the ECHR Blog editors, we have seized this momentum to take stock of the potential effects of Protocol 15 by organizing a special Blog Symposium. We have invited a group of eminent ECHR specialists to critically examine and reflect upon some of the key changes introduced by the new Protocol.

 

In the coming days, they will shed light on Protocol 15 from different perspectives. Janneke Gerards (Utrecht University) will focus on the Court’s approaches to issues of subsidiarity and margin of appreciation so central to the new Protocol. Lize Glas (Radboud University Nijmegen) will analyse two specific changes: the criteria for office, more specifically the age limit of candidates for the office of judge at the Court, and the relinquishment of jurisdiction by a Chamber to the Grand Chamber. Subsequently, Philip Leach (Middlesex University) will consider the consequences for victims of human rights violation who apply to the Court. And finally, Başak Çalı (Hertie School of Governance) will analyse the prospects and threats of the new Protocol for civil society, especially for the human rights organisations involved in Convention proceedings. 

 

We wish you much enlightening reading pleasure in this week’s symposium!

Seminar on the Effective Implementation of the ECHR

On 15 June, PluriCourts at the University of Oslo and the Steering Committee for Human Rights of the Council of Europe will host a seminar on the 'Effective implementation of the European Convention on Human Rights - Enhancing Domestic Dialogue and Co-ordination'. The seminar will be streamed live through this link. Here is the full programme:

10:00 Opening and welcome

- Mr Christophe POIREL, Director of Human Rights (DGI), Council of Europe (10 min)
- Mr Robert SPANO, President of the European Court of Human Rights (10 min)
- Mr Morten RUUD, Chair of the Steering Committee for Human Rights (CDDH) (10 min)

10:30 Execution of the Strasbourg Court judgments as the cornerstone of the implementation of the Convention at the national level

Framing intervention: Ms Clare OVEY, Head of Department for the Execution of Judgments of the European Court of Human Rights, Council of Europe (10 min)

Discussants:
- Mr Alfonso BREZMES MARTÍNEZ DE VILLARREAL, Agent for the Kingdom of Spain before the European Court of Human Rights, Head of the Area of Human Rights of the Constitutional & Human Rights Department, Ministry of Justice (national experiences of limitations/ barriers in respect of domestic structures and mechanisms for the implementation of judgments) (10 min)
- Mr Jan SOBCZAK, Agent of the Polish Government before the European Court of Human Rights, Deputy Director, Legal and Treaty Department, Ministry of Foreign Affairs (national experiences of limitations/ barriers in respect of domestic structures and mechanisms for the implementation of judgments) (10 min)
- Ms Debbie KOHNER, Secretary General, European Network of National Human Rights Institutions (ENNHRI) (barriers/limitations encountered by NHRIs in participating in the execution of judgments) (10 min)
- Ms Başak ÇALI, Professor, Hertie School, Berlin (Germany) (10 min)

Discussion and intervention by Mr Matthew SAUL, Associate Professor, Inland University of Applied Sciences (Norway) (10 min) and ‪Mr Øyvind STIANSEN, Postdoctoral Fellow, University of Oslo (Norway) (10 min)

12:00 Lunch break

14:00 Inter-agency co-ordination and multi-stakeholder dialogue as a pre-condition for an effective execution of judgments

Framing intervention: Mr Philip LEACH, Professor, Middlesex University (United Kingdom) (5 min)

Discussants:
- Mr Vít Alexander SCHORM, Chair of the Drafting Group on enhancing the national implementation of the system of the European Convention on Human Rights (DH-SYSC-V) (sharing best practices on creation of multi-stakeholder working group – Committee of experts on the execution of the Court’s judgments and the implementation of the Convention) (10 min)
- Mr Murray HUNT, Legal Adviser to the Joint Committee on Human Rights of the United Kingdom Parliament (mainstreaming accountability of the executive on execution matters in legislative oversight and budget approvals) (10 min)
- Mr Leif BERG, Head of Knowledge Management Division under the Jurisconsult Directorate, Jurisconsult Directorate of the Court (the role of dialogue with superior national courts in promoting the application of the Convention at the national level) (10 min)
- Dr Marcin SZWED, Lawyer, Strategic Litigation Programme, Helsinki Foundation for Human Rights (sharing good experiences of engagement with the executive, the parliament or national courts) (10 min)

Discussion and intervention by Ms Janneke GERARDS, Professor, Utrecht Law School (Netherlands) (10 min) and Mr Fredrik SUNDBERG, former Head of the Department for the Execution of judgments of the European Court of Human Rights (10 min)

15:30 Making full use of the co-operation with the Council of Europe

Framing intervention: Mr Mikhail LOBOV, Head of Department for the Implementation of Human Rights, Justice and Legal Co-operation Standards, Directorate General Human Rights and Rule of Law (DGI), Council of Europe (10 min)

Discussants:
- Mr Pavlo PUSHKAR, Head of Division, Department for the Execution of Judgments of the European Court, Council of Europe (10 min) (sharing good practices of its co-operation projects) (10 min)
- Ms Simona GRANATA-MENGHINI, Secretary of the European Commission for Democracy through Law (“the Venice Commission”) (sharing good practices of its co-operation projects contributing to the execution of judgments) (10 min)
- Mr Hans-Jörg BEHRENS, Chair of the Committee of experts on the system of the European Convention on Human Rights (DH-SYSC) (highlighting the holistic approach of the CDDH to functioning of the system of the Convention and the special attention to the execution of judgments, plus the role of CDDH as a forum of the government agents sharing best practices) (10 min)

Discussion (30 min)

17:00 Main takeaways and conclusion of the seminar 

- Mr Geir ULFSTEIN, PluriCourts

New Subscription System to the ECHR Blog

Dear readers,

Many of you are subscribed to our blog and receive updates on new posts by email.

We are writing to inform you that as of 9 June 2021, all subscribers to ECHR Blog will receive our news and posts by email through a new platform called Follow.it. To continue your subscription with our blog, please open in your inbox the email from Follow.it and confirm that you have subscribed to our blog.

The email looks like the image below, and you are kindly asked to press ‘confirm that this is correct and you want to receive this content by clicking here’. We have selected the platform Follow.it platform because it complies with the GDPR and is a safe platform. 

 

In the last 13 years, we used another platform for email subscription called Feedburner, which unfortunately is closing in July 2021. This is the reason, why we had to seek to move to another platform.

Thank you for your continued support, and apologies for any inconvenience caused. And if you are not yet subscribed, feel very welcome to do so by using the subscription button in the menu on the right.

Antoine Buyse and Kushtrim Istrefi, ECHR Blog Editors

Guest Post on Big Brother Watch and Others v UK : Snowden’s Redemption or Pyrrhic Victory?

It's our pleasure to introduce a guest post on one of last month's key judgments on surveillance through bulk interception of data and on privacy, the Grand Chamber judgment in Big Brother Watch and Others v the United Kingdom:

Maximillian Shreeve-McGiffen, LLM student, University College London

Introduction

Upon the passage of the Investigatory Powers Act 2016 in the United Kingdom, Edward Snowden tweeted that the UK had legalised “the most extreme surveillance in the history of western democracy”. On 25 May, the European Court of Human Rights’ (ECtHR) Grand Chamber delivered a judgment in Big Brother Watch and Others v UK. It ruled that the UK’s bulk surveillance powers were incompatible with Articles 8 and 10 ECHR. Leading human rights organisations and privacy NGOs have already issued press releases stating that the judgment is an “important win for privacy and freedom for everyone in the UK and beyond”. Big Brother Watch itself tweeted that the judgment “vindicates Snowden’s whistleblowing”.

So, is this Snowden’s redemption, or are we getting ahead of ourselves? This blogpost will argue that Big Brother Watch is not an outright victory for privacy rights or campaigners, but at best a ‘Pyrrhic victory’. In my view, the judgment can be criticised (a) for normalising mass-surveillance rather than challenging it outright, and (b) for failing to require judicial supervision of the process and instead relying on the weaker constraint of ‘independent internal supervision’. This blogpost will also lament the increase in UK executive surveillance powers under the Coronavirus Act 2020, and argue that the ECtHR missed a golden opportunity to take a stand against ‘coronaveillance’. 

The Grand Chamber also delivered a judgment in Centrum för rättvisa v. Sweden, which dealt with similar issues of mass surveillance under Swedish law. For the sake of brevity, and my own knowledge of English rather than Swedish law, my comment will be limited to Big Brother Watch and Others v UK.

Facts of the case

The claimants were Big Brother Watch, a UK-based NGO campaigning for privacy rights, various human rights groups including Open Rights Group, Amnesty International and Liberty, and a privacy academic, dr. Constanze Kurz. They applied to the ECtHR to challenge the legality of GCHQ’s (the UK’s telecommunications and monitoring services intelligence agency) surveillance regime. The 2016 law allowed GCHQ to collect data indiscriminately and in bulk without being required to provide any evidence suggesting suspicion against the surveilled. Therefore, the claimants, argued that the surveillance regime compromised the Article 8 and Article 10 rights of UK internet users.

The judgment

The Grand Chamber ruled in favour of the claimants and held, to summarise the main findings, as follows: 

(1) In respect to Article 8 ECHR: the UK system both lacked an ‘independent body’ from the executive to authorise mass interception of information, and lacked “end-to-end” safeguards to ensure that any intervention with Convention rights was necessary and proportionate. There were three main issues identified by the Grand Chamber: (i) the Secretary of State - a member of the executive - authorised mass interception, rather than an independent body (ii) there was no categorisation of which ‘search terms’ could be examined, so anything could be monitored (iii) the use of ‘selectors’ (technology that identified specific individuals) had not been authorised. The Grand Chamber held these considerations led to a breach of the right to privacy laid out in Article 8, as the resulting law did not meet the “quality of law” requirement and was therefore beyond what was “necessary in a democratic society” (paras. 425-426).

(2)  In respect to Article 8 ECHR and ‘bulk surveillance’: The Grand Chamber ruled that Article 8 does not prohibit bulk interception in principle as long as it is used “to protect national security and other essential national interests against serious external threats” (para. 347). The Grand Chamber went on to endorse the earlier 2018 Chamber judgment's positive outlook on the technology, claiming that bulk interception is a “valuable means of protecting against international crime and terrorism” (para. 386). Finally, a large amount of discretion was given to individual governments – who were given license to “enjoy a wide margin of appreciation in deciding what type of interception regime is necessary” (para. 347). 

 

(3) In respect to Article 10 ECHR: the UK’s bulk interception of communications and the acquisition of data from communications service providers violated the right to freedom of expression as laid out in Article 10. This was due to the lack of safeguards in relation to confidential journalistic material. In particular, the Grand Chamber claimed that interception of ‘selectors’ or ‘search terms’ that were known to be connected to a journalist should be authorised by an impartial decision-making body to determine whether it was “justified by an overriding requirement in the public interest”. As this was not happening, and GCHQ were reading confidential journalistic material without sufficient safeguards, this was held to violate free expression (paras. 456-458).

Analysis: The Court did not go far enough

(a) The Normalisation of Bulk Surveillance

Firstly, this blogpost argues that the Grand Chamber's failure to recognise ‘bulk surveillance’ as a harm-in-itself means that Big Brother Watch and Others v UK can at best be seen as a Pyrrhic victory for the applicants. A battle has been won against a specific GCHQ policy, but alongside this a major concession has been made in favour of the state over the individual. The Grand Chamber has essentially rejected the argument, made by privacy activists, that bulk surveillance is normatively incompatible with living in a democratic, constitution-based society. Consequently, it seems unsurprising that leading human rights scholar Marko Milanovic has been quick to criticise the judgment as a “permanent normalisation of mass surveillance in human rights terms”.

It could be counter-argued that there are reasons why ‘bulk surveillance’ is necessary.  Following the philosopher John Stuart Mill’s harm principle, given that many terror attacks have been perpetrated by ‘lone-wolves’ and individuals without criminal records, it might make sense to employ bulk collection methods. This argument would suggest that more harm is done to individuals by large-scale terror attacks, than by small-scale violations of privacy. ‘Bulk collection’ allows the security services to be aware of individuals who would otherwise slip through the net. This is essentially the view of the majority of judges presiding over Big Brother Watch and Others v UK – bulk interception is a “valuable means of protecting against international crime and terrorism”.

 

This argument might have merit, if there were not still serious doubts as to the effectiveness of mass surveillance technology in protecting national security. Recent research by Michelle Cayford and Wolter Peters suggests that bulk surveillance makes no difference to the success of counter-terrorism operations. Their work, which analyses the statements of senior intelligence officers in the UK between 2006 and 2016, has found that considerations of cost tend to triumph in national security discussions – essentially, bulk surveillance is carried out because it is cheaper, not better. Marie-Helen Maras has also published a paper which claims that it makes little sense to use ‘bulk surveillance’ to prevent terror - terrorists are known for being capable of researching Western intelligence processes and bypassing them. She argues that, statistically, the use of undercover officers, informants, or agents to gather intelligence, are far more effective mechanisms.

 

Thus, it seems evident that ‘bulk surveillance’ violates the rights of the innocent without having an impact on the success of operations against the criminal. William Blackstone, one of England’s most famous judges and legal commentators, popularised the maxim that ‘it is better to let ten guilty persons escape than let one innocent suffer’. This blogpost argues that the ECtHR has failed to recognise the categorical disproportionality of bulk measures.

(b) The Need for Judicial Supervision

Secondly, this blogpost argues that the safeguards outlined by the Grand Chamber are insufficient to prevent arbitrary violations of the right to privacy. Instead of merely requiring the security services to be supervised by an ‘independent body’, the Grand Chamber should have gone further and required the process to be overseen by the judiciary. The fact is that this body would likely not be ‘independent’, as any individual possessing the requisite information to serve on it would likely be an ex-member of the security services. Following this, there is the risk of institutional biases preventing an individual’s human rights from being upheld. The joint opinion of Judges Lemmens, Vehabović and Bošnkjak emphasises this: they argue that “it is hard to imagine how a person having an organisational and, possibly, collegial connection with the requesting authority could properly assess a request in a fair and disinterested manner”. This is even more likely in oversight of intelligence services, where no tradition of oversight exists. As expressed by the partly concurring judges, “internal authorisation cannot provide for a level of protection against arbitrariness and abuse comparable to the protection offered by independent scrutiny”.

The counter-argument here is that judicial supervision would decrease the efficiency of the security services, as valuable resources which could be used in fighting crime and protecting national security, would instead be used in obtaining judicial warrants for bulk surveillance. Moreover, the security services are often acting without time on their side, and to require them to submit to judicial supervision could be characterised as needless bureaucracy and ‘red-tape’. 

However, such a counter-argument mis-characterises the presumption of innocence, and the purpose of human rights. Although we live in an age of seemingly endless and arbitrary lockdowns, the presumption should still be that people are innately free, and must be free to behave how they wish – ‘innocent until proven guilty’. This is the argument behind the partly concurring opinion: “in a democratic society, communications and related communications data of an identified individual may not be singled out and examined without that individual’s consent unless very convincing reasons exist to do so”. The opinion finishes strongly stating that if a “system designed to properly protect human rights is perceived as an unnecessary hurdle, democratic society should be put on notice”. This blogpost is in agreement with this statement, and argues that there are no “very convincing reasons” for ‘bulk surveillance’ as outlined above. If there were to be a scenario where bulk surveillance were necessary, a judge would be better placed to make the call than a member of a commission, in terms of impartiality.

The Rise of ‘Coronaveillance’ 

Finally, this blogpost argues that the Grand Chamber has erred in the judgment by failing to consider the potential for rights violations in the current response to the coronavirus pandemic. 

A relevant difference between the Grand Chamber judgment (2021) and the previous Chamber judgment (2018) is the emergence of the COVID-19 pandemic. This pandemic has resulted in a large increase in surveillance for reasons of ‘public health’. For example, the UK’s Coronavirus Act 2020 (s. 21) loosens a rule under the Investigatory Powers Act 2016, which allowed ‘urgent surveillance warrants’ without prior judicial authorisation, as long as they were approved ex-post-facto by a judicial commissioner within 3 days. Now, the period has been extended for up to 12 working days. Liberty, a leading UK-based human rights organisation, has given evidence to the UK Parliament that the Coronavirus Act 2020 marked the “secret expansion of covert surveillance under the guise of protecting public health”. 

In view of similar developments worldwide, legal scholar and privacy specialist Matthew White has coined the term ‘coronaveillance’, arguing that we may be heading for an age characterised by such pandemic-justified surveillance measures. He claims that the Coronavirus Act 2020 amendments on the IPA 2016 could be in violation of EU law. There is historical precedent for the idea that ‘coronaveillance’ could become a mainstay. Historian Yuval Noah Harari has written in the Financial Times that “many short-term emergency measures will become a fixture of life”, citing Israel’s 1948 ‘state of emergency’ temporary measures, ranging from press censorship and land confiscation, which still persist today. It is foreseeable, as long as there is the potential of a coronavirus variants, that the expansion of these bulk powers could remain, and that an age of ‘coronaveillance’ could become a fixture of life. Furthermore, as Nóra Ni Loideain argues in a chapter of Law, Policy and the Internet, developments such as the ‘Internet of Things’ and the interconnectivity of Internet-enabled systems will only increase the scope of these powers, as more things will become ‘online’.

In a previous article on the Coronavirus Act 2020, I have argued that if such bulk surveillance measures are considered ‘necessary’ in a coronavirus response, they should use the strict time limit of 30 days of the United Kingdom's Civil Contingencies Act 2004 as a legislative framework – the current indefinite scope of the Coronavirus Act 2020 is too long to allow such. 

Conclusion

In conclusion, Big Brother Watch must be seen as a missed opportunity, or at most a Pyrrhic victory. What has been won in terms of acknowledging the breaches of Articles 8 and 10 ECHR, has been lost in a judgment in which the Grand Chamber has effectively normalised mass surveillance. Additionally, the requirements imposed on the UK government are nowhere near stringent enough. Finally, the Coronavirus Act 2020, in my opinion, shows that the UK executive are keen to consolidate their ability to perform mass surveillance, and this should be condemned in the strongest terms. The Grand Chamber ruling was an opportunity to do this, which was sadly missed.

Webinar on Conflict Litigation in the Post-Soviet Region

On 21 June, the European Human Rights Advocacy Centre (EHRAC) of Middlesex University will host a panel discussion titled Conflict on Litigation in the Post-Soviet Region. The panel will focus on the recent interstate judgments of the European Court of Human Rights, including Ukraine v Russia (Re Crimea) and Georgia v Russia (II).

Speakers of the panel include Angelika Nußberger, Marko Milanovic, Lia Nadaraia and Noam Lubell. The panel discussion will be chaired by Jessica Gavron from EHRAC.

Participation is free of charge. Click here for registration.

New Book on Judicial Protection of Fundamental Rights on the Internet

Oreste Pollicino (Bocconi University) has published a book titled Judicial Protection of Fundamental Rights on the Internet: A Road Towards Digital Constitutionalism? with Hart Publishing. The book features a foreword by Robert Spano, President of the European Court of Human Rights. 

Here is the abstract of the book:

 

'This book explores how the Internet impacts on the protection of fundamental rights, particularly with regard to freedom of speech and privacy. In doing so, it seeks to bridge the gap between Internet Law and European and Constitutional Law.

The book aims to emancipate the debate on internet law and jurisprudence from the dominant position, with specific reference to European legal regimes. This approach aims to inject a European and constitutional “soul” into the topic. Moreover, the book addresses the relationship between new technologies and the protection of fundamental rights within the theoretical debate surrounding the process of European integration, with particular emphasis on judicial dialogue.

This innovative book provides a thorough analysis of the forms, models and styles of judicial protection of fundamental rights in the digital era and compares the European vision to that of the United States. The book offers the first comparative analysis in which the notion of (judicial) frame, borrowed from linguistic and cognitive studies, is systematically applied to the theories of interpretation and argumentation.'