You are on page 1of 23




Members will find attached a document submitted by Mr Dimitri YERNAULT, Université Libre
de Bruxelles:




PE 300.134


Research assistant
Centre de Droit public
Université Libre de Bruxelles
Brussels, 13 September 2000
Journal des Tribunaux – Droit Européen, 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 taking
the 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 the
relationships 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 electronic
communication, 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 report2 and the
resulting political implications. This report reveals the existence of several telecommunications
surveillance systems, the most impressive of which appears to be the Echelon programme,
describes the electronic communications interception technologies used (satellite, all forms of
telephony, 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
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

This article is a much abridged and reformatted version of a study which will appear in issue 2000-1 of the Revue
Belge de Droit International entitled ‘From fiction to reality: the Echelon global electronic interception programme
and the international responsibility of states in the light of the European Convention on Human Rights’. Our thanks
to JTDE and RBDI for allowing this.
The 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 entitled Development of Surveillance Technology and Risk of
Abuse of Economic Information conducted 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 study
currently 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 or
common-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 technology
assessment issues, vol. 3/5; Chris ELLIOT, The legality of interception of electronic communications : A concise
survey of the principal legal issues and instruments under international, European and national law, vol. 4/5; Nikos
BOGOLIKOS, The perception of economic risks arising from the potential vulnerability of electronic commercial
media to interception, vol. 5/5.

PE 300.134




EISSEN. piles up (1. 65. There are claimed to be relay and listening stations in seven countries: the UK and Germany (Europe).A. In conjunction with the intelligence services of four other countries (UK. giving rise to serious risks of legal vacuums to the detriment of the security which should govern the protection of fundamental rights3. Bruylant and LGDJ.b. 3 Mélanges M. Australia.a.). its explanatory and general nature entails a violation of the principle of necessity in a democratic society (4. the European Parliament has set up a temporary committee which will probably play a crucial role in the future of the campaign against Echelon (2. Australia and New Zealand (Oceania).doc 3/22 PE 300. Brussels and Paris. including various forgotten official sources. 1995. Japan (Asia). 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. There follows a short and non-exhaustive list of Internet sites collecting information on Echelon: « http://www.134 EN . may properly be contested before the European Court of Human Rights. p. which individuals may claim the status of potential victims of secret interference with their privacy (4. 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. The ‘Dictionary’ (group of programmes to sort intercepted messages) of the Echelon listening stations is said to contain key words named not only by the intelligence agency of the country concerned but also by those of the other four countries involved. 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. The struggle against the Soviet bloc has thus gradually given way to a new national security concept which now includes commercial and economic intelligence4. The secrecy of the rules governing Echelon constitute a violation of the principle of lawfulness which should govern interference with privacy such as electronic interception. New Zealand and Canada) it set up the UKUSA system. Canada and the United States (America).htm » (site of the Federation of American Scientists with a 4 CM\433563EN. The US National Security Agency (NSA) is at the heart of this global message interception organisation.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.).).fas. As the It is sometimes alleged that countries other than those mentioned also belong to the network. 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. This fantastically high-powered network is claimed to feed electronic memories and data banks from a network of interception satellites covering the entire globe. for passive participation confined to hosting an interception station and the United Kingdom for active participation by its intelligence services).). fax and telex messages and electronic mail. We need to consider how resolutely the Commission will establish Echelon’s breach of the principle of national sovereignty which entails the prohibition of extraterritorial telephone tapping (3. a surveillance network which arose in the wake of the Second World War. 1. imputable to states which are parties to the convention (Germany.). These breaches.

refusing to tell Parliament of the secret defence agreements linking it to the US Administration. « http://www. PE 300. This required the US intelligence services. often forget to read this act in 9 Patent application No. including the latest articles by D CAMPBELL) .3156-1-MIA. however. 8 Congress hearing by the House Armed Services Committee. col. 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 ‘Dictionary’9 Official UK Parliament documents confirm not only that the Menwith Hill basis is operated by the NSA but also that it is jointly run by HM Government10. col.tscm.doc . The outcome of the hearings has not become known and in any case section 309 related only to the protection of US citizens’ privacy.htm » which clearly indicate that the Menwith Hill base belongs to the RAF and is run by the and many « http://www. 7 Written question by Mr BAKER. of General W in June 2000.lemonde. however. only the 1951 agreement governing the establishment of NATO forces could be consulted in the Parliament « http://www. the Congress made a strengthened NSA a strategic priority. While the US authorities are apparently anxious to protect US citizens against electronic invasion of » (ZDNet sites giving the most detailed and up-to-date information as at 30 June 2000. The preparatory work for the National Defence Authorisation Act for Fiscal Year 2000 confirms that the Menwith Hill base is run by the NSA6.00. 10 The presence of UK personnel at all levels ensures that British interests are safeguarded (oral question by Mr BAKER. « http://www. 113 stat.937. given that the Government Communications Headquarters (UK electronic intelligence service) internet site openly states that 'all GCHQ systems are linked number of references).02. to indicate the legal basis on which they were conducting electronic interception. 9). 128-129. People do.195.htm ». « http://164. 1619. 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. involves only two of the 25 radomes officially listed by the UK Government7. 12 May 2000. 5. on 17 February 2000. 11 Written question by Lord MARSH. co.134 EN 4/22 CM\433563EN. House of Lords bulletin of 5 June 2000. House of Commons sitting of 6 April » and « http://www. 392 UK civilian staff.1999) . the site employs 415 US military and 989 US civilian staff. 6 See tables to section 2401 of the bill tabled by Representative SPENCE on « House of Commons Bulletin.zdnet.gwu.11 ».html » .transnationale.htm » (George Washington University presents declassified documents of the Air Intelligence Agency proving the existence of Echelon) ». House of Commons bulletin of 9 November 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. 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. 9. The latter was still. the number of Government Communications Headquarters staff was not revealed for reasons of national security (written question by Mr Baker. One of its acknowledged functions is missile detection which. However. it also includes a section 502 in its chapter dealing with military intelligence agencies. including the NSA.cyber-rights. « http://www. 5 Public Law 106-120 of 3 December 1999. C-in-C of the Nato forces during the conflict: « http://www.html » (Le Monde). 513).422 lodged on 10 August 1999 at the US Patent and Trademark Office.htm » (report broadcast by Radio France International on 15. « http://www.

16 National Assembly. preface to Nicky HAGER's book Secret Power. which is still classified. Thursday 17 February 2000. are exchanged. the United Kingdom. and technical assistance is provided by each to other'15. and the work in progress at the European Parliament. Australia and New Zealand. LANGE. has nevertheless objected to being in its turn a possible target of US electronics intelligence and therefore set up a parliamentary information mission in February 200017. a matter on which he did not conceal his concern20. CAMPBELL.14 but the most explicit official source is still chapter 27 of the 1996 report by the Canadian Auditor-General's report. 8 October 1998. during which its Foreign Minister stated that he would take the action required if Echelon were proved to para. 17 National Assembly. 'http://www. Tuesday 22 February 2000. Doc. 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. 18 Libération of 5 July 2000 points out that the 'Direction de la Surveillance du Territoire' was to carry out the inquiry.134 EN . in which it concluded that Echelon did 13 CM\433563EN. 29 February 2000. 13 February 2000. it may reasonably be concluded that an international electronic surveillance system does indeed exist. p. afternoon sitting. was cooperating with the NSA…. records of the Committee on Justice of the Belgian Chamber. After a description of how Canada conducts its Signals Intelligence (electronic intelligence) policy. New Zealand's Role in the International Spy Network published in 1996. 19 Answer to oral question by Mr VAN HOOREBEKE. which also has its own foreign military communications interception system (using the Helios 1 satellite)16. 'http://csec-ccst. 'Australia first to admit "we’re a part of global surveillance system"'. Chambre 50 430/001 and Senate 2-332/1. The Paris Prosecutor's Office entrusted the DST with an investigation in early July 200018. Minutes No'.html'). record of the Committee on Foreign Affairs of the Belgian (online magazine. The closest of these were forged during World War II and solidified during the Cold War. 15 Chapter 27. France. we read that 'Canada has close formal intelligence relationships with a number of countries. On 12 http://gchq.html D.gc. No 1114. If its existence was unknown to a former New Zealand Prime Minister13 it was confirmed in early 1999 by the head of the Australian electronic intelligence service (Defence Signals Directorate). including analyses and assessments. claiming that they do not have the resources required. from which it appears that the Belgian services.28 of the Canadian Auditor-General's report for 1996 'http://www. which has amazingly also remained in the shadows. 53. 20 Record of the plenary sittings of the Senate. opinion of the national Defence Committee on the 1999 finance bill. http://www. there have been a number of parliamentary debates.fas. 21 Report by Mr HORDIES and Mr DE DONNEA on the 1999 activities of the Standing Supervisory Committee on the intelligence and security services.' with its own electronic intelligence Telepolis 28.oag-bvg.html'. while the 'Direction Générale de la Sécurité extérieure. whose Ministry of Justice has called Echelon an attack on territorial sovereignty and a threat to the right to privacy19.doc 5/22 PE 300. 14 February 2000. Defence Committee. In Belgium.htm. have not carried out any investigation of Echelon going beyond a superficial consultation of sources in the public 14 D. On 8 May 2000 the R Committee received a confidential report. parl. Links remain particularly strong with the United States.together on the largest local area network in Europe – which is connected to other sites around the world via one of the largest wide area networks on earth'12. 27.05. Intelligence products. run by five 'Anglo-Saxon' countries.heise. This collaboration was formally confirmed in the 1999-2000 report of the Commissioner for the Telecommunications Security Centre.gc. 313. 26 See Parliament’s site: http://www. required protective measures concerning economic information and effective encryption (OJ 12. telephone and fax communications are routinely intercepted by the United States National Security Agency. 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 in the interception of telephone calls under the UKUSA Agreement. 25 The resolution on transatlantic relations (paragraph 14) considered in particular that the risks of abuse.4. Having taken the Foreign Minister at his word. of the first STOA report to have mentioned Echelon. 98). c. Echelon was raised during Parliament’s sitting of 30 March EN 6/22 CM\433563EN. 2. PE 300. 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. PE 166. one of its former directors. but which minimised its scope (only satellite communications. The UK Ambassador to Belgium reacted to the call for proceedings before the European Court of Human Rights by saying that his country had better protection of privacy than anybody (La Libre Belgique 8 July 2000). p.499/Int.europarl.St/Exec. drawn up by V. Echelon and the European Parliament The European Parliament has been trying to find out more about Echelon since an initial study published on 6 January 1998 stated that ‘within Europe.htm. heard by the R Committee subsequently having decided that debate would be premature pending the outcome of the European Parliament’s work23. In addition to the stir caused in the national parliaments. the Prime Minister.html). in particular of Echelon. 2-61. An in-depth investigation by the US NBC News network on 14 April 2000 disputed the official argument http://www.8 May 2000 the R Committee received a further report which is still classified. 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. 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 breach of 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 the detriment of the European public’s right to privacy on the one hand. An appraisal of the technologies of political control. then expressed concern at electronic surveillance and its economic fallout in respect of transatlantic relations25. transferring all target information from the European mainland via the strategic hub of London then by Satellite to Fort Meade in Maryland via the crucial hub at Menwith Hill in the North York Moors of the UK’24. Manchester. 27 Mr WOOLSEY. all e-mail. A resolution of 16 September 1998.doc . Thursday 6 July 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 on 24 Paragraph 2. quoting Echelon by name.1998. sitting no. WRIGHT of the Omega Foundation. 22 Record of the sittings of the Senate. Justice and Home Affairs26.m. 23 De Morgen 31 July 2000. The debate resumed in 1999 with the publication of five new reports commissioned by 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.msnbc.asp?cp1=1. p.10. A British Labour MEP was even exist. i.e. 1% of international communications) in respect of other allegations. Commissioner Liikanen announced receipt of a letter from the US Administration denying any economic espionage27 and a communication from the UK Government claiming that UK law regulated electronic interception in detail and had been approved by the European Commission for Human Rights.

03. 32 Decision of 5 July 2000. to consider encryption as a means of protecting privacy. did. has been instructed to ascertain whether Echelon exists and if so whether it is compatible with Community law. The Council both condemned the commercial aspects of telecommunications interception and affirmed its value for combating crime and the defence of national security. 31 The motion was tabled on 31 March by Mr WATSON (PE 285. The attachment it reaffirmed to the ECHR could.doc 7/22 PE 300. No. The resolution adopted by the Committee on Citizens Freedoms and Rights. is in complete conformity with United Kingdom law. Parliament finally decided on 5 July 2000 to set up a temporary committee on Echelon. 2266th Council meeting. Justice and Home Affairs on 11 April 2000 expresses doubts about the protection offered by the Convention regarding interception by a Member State in respect of persons who are not its nationals. 30 Council press release of 29 May 2000. It may be asked why conformity with US law should be claimed in front of Parliament. The legal debate is not only whether Echelon is compatible with Directives 95/46/EC and 97/66/EC which protect the privacy of personal data. the UK and German MEPs having been relentless in their opposition to a committee of enquiry with wider powers. is not without reservation.134 EN . declare that ‘there was no doubt about the existence of a telecommunications interception system’ and that ‘the question was about its use’29. Similarly. Article 6(2) of the TEU also makes the European Convention of Human Rights general principles of Community law. conformity with the Convention. simply notes the problem presented by the 28 The statements by Commission LIIKANEN and Mr EVANS appear in the untranslated record of proceedings of the European Parliament of 30 March 2000. The Portuguese Minister of the Interior. to analyse the risks to European industry and if necessary to make political and legislative proposals32. as we shall see. The whole passage looks curiously like an admission. or will be conducted. 29 Libération 31. The Temporary Committee. with United States law. and most importantly. vital for co-ordinating the final text). however. The Justice and Home Affairs Council of 29 May 2000 which in part dealt with telecommunications interception was careful not to take such a clear-cut position. the European Parliament's Committee on Civil Liberties was less inhibited by detail in castigating Echelon on at least two grounds: the absence of any notification of electronic interceptions carried out by one State on another’s territory on the one hand and the disproportionate nature of systematic interception in respect of the right to privacy on the other. CM\433563EN. whose country was providing the Presidency of the Council during the first half of 2000.918. 3050/00. is done with complete respect and in complete conformity with. it simply referred the Echelon case to a working party. Professor Elliott’s study entitled ‘The legality of the interception of electronic communications’ (one of the five reports analysed by Parliament). which had been principally supported by the European Greens. with an initial work programme planned up to 23 November 2000. Justice and Home Affairs.2000. The committee maintained that any State using such an interception system should cease doing so31. B5-0594/2000. After lengthy procedural wrangling. In a resolution of 11 April 2000 which passed practically unnoticed. PE 285.more forthright: ‘(…) everything that has been conducted. have led it to make a more outspoken condemnation of the abuse of which Echelon has been suspected30. the European Convention on Human Rights’28.911) and was the subject of a number of amendments (PE 285. however. Referring to the work of Parliament.911/1-13) before being approved on 11 April (minutes of the Committee on Citizens’ Freedoms and Rights.

doc . Thus. p. it came to the attention of the applicant. 6th ed.D. Information from those telexes had been collated and reported to other government agencies. No. having a monopoly of acts of enforcement on its territory. included the following in its description of the facts of the case: In or about July 1991. that telexes addressed to himself from East European trade unions were being routinely intercepted by GCHQ (Government Communications Headquarters) which is the United Kingdom’s central intelligence-gathering centre. David. 21482/93.134 EN 8/22 CM\433563EN. on which Echelon is based. First because in its rulings the Strasbourg court has generated a body of general principles applicable both to telephone tapping and the recording of data on private life. a State may extend the field of application of its legislation beyond its own territory but may not do so in respect of enforcement without obtaining the consent of the State on whose territory it is carried out. unless it was the fact that the UK agencies were using a programme known as….36 Moreover. p. Secondly. An extraordinary lengthy justification for an inadmissibility decision . 1999.’Dictionary’34. There was nothing out of the ordinary in this case which turned out to be inadmissible as clearly unfounded. p. investigations. Salmon and E. Appl. who also stated that at a particular address in London all telexes passing in and out of London were intercepted and fed into a programme known as ‘the Dictionary’. 1999-2000. by virtue of this basic principle of international law a foreign judgment or administrative act requires an order for enforcement by the State on whose territory the legal act in question is to take effect. 18. enquiries.J. 1 and its conclusion (p13). abductions or seizures'37. 502 respectively. DINH (=) P. Droit des gens. as no official or media investigations yet appear to have realised that the European Commission on Human Rights has had to take cognisance in at least one published decision of an application concerning the interception of telefaxes sent between a British trade unionist and trade unions in Eastern Europe. The draft International Law Institute Resolution on the limits laid down by international law to the powers of States over persons within their jurisdiction tabled in January 1999 points out that the State. series A No 9 p. 119. and going beyond finding that an alleged offence has taken place. as Professors David and Salmon maintain. 476 and p. University of Brussels..35 In other words. 248. p. Droit international public. Echelon versus the general prohibition of extra-territorial acts of enforcement One of the legal questions raised by Echelon concerns the geographical validity of the rules governing it.interception of communications by a non Member country without offering any kind of solution33. DAILLER and A. 34 Decision of 27 June 1994 in Christie v. 37 J. but rules out any extra-territorial powers of execution by force’. L.G. is therefore alone empowered to authorise 33 See the summary of the Elliot report which states that ‘there do not appear to be adequate legal processes to protect privacy against unlawful interception. UK. The evidence for these allegations was provided anonymously by a former GCHQ employee. which picked out key names and words. 36 See in particular the judgment of 7 September 1927 by the Permanent Court of International Justice in the Lotus case. DR 78-A. Paris. general international law on the one hand and the case law of the bodies of the ECHR on the other certainly allow actions contesting the validity of extra-territorial interceptions. searches. He stated that ‘the Dictionary’ was monitored by carefully vetted British Telecom employees to give the impression that GCHQ was not carrying out the interception and that warrants were not obtained for this activity. in the context of a Granada television documentary ‘Defending the realm’. However. 35 N.QUOC. 3. Territorial sovereignty means that ‘international law acknowledges the extraterritorial normative powers of states. PELLET.. PE 300. ‘a State is “a fortiori” prohibited from carrying out arrests. either by foreign governments or by non-governmental bodies’.

to observe the right of individuals to respect for their privacy as enshrined in the territorially applicable national law’. 5019/00/EN/final. 43 OJ. data may be transferred to other States only if the other country ensures an 'adequate' level of protection of the right to privacy. CM\433563EN. 42 Legislative resolution of 17 February 2000. See also the draft additional protocol to Council of Europe Convention No 108 on the protection of individuals relating to data banks. report of 23 April 1999 by Mr G.11.38 The debate is not confined to the international law specialists. 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. WP 32).similar acts conducted on its territory by bodies of another State. This The differences between the Union and the USA which opposes this rule have been the focus of hard-fought negotiations (see opinions 3/2000 of 16 March 2000 and 4/2000 of 16 May 2000 on the level of protection provided by the safe harbour principles given by the Article 29 working party on data protection. 40 Committee on Civil Liberties and Internal Affairs. The Institute also formally lays down that individuals must be able to dispute extra-territorial acts affecting them. 5005/99/final. 39 Having been consulted on another Council draft resolution on the same topic. P.doc 9/22 PE 300. 986/fin. Justice and Home Affairs. 1999. 7. whether deriving from the Council of Europe or the 38 ILI ann. pp. the European Parliament noted that ‘this resolution is not binding in nature and gives law enforcement authorities in the Member States no right of interception outside their own jurisdiction’. on the preparatory work for the 1998 Berlin session and in particular the draft resolution (pages 602. PE 229. drawn up in response to US pressure and sometimes known as ‘ENFOPOL’. p. L 281. 68-1. 11.coe. pp. A5-0019/2000 and the report by Mr Di Pietro of 31 January 2000 on this draft act for the Committee on Citizens Freedoms and Rights. still allows for the possibility of 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. published on 8 June 2000 ‘http://www. The first recital in the Council resolution of 17 January 1995 on the lawful interception of telecommunications is perfectly clear ‘reaffirming the need. 40 Respect for territorial sovereignty 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. DG XV at the Commission. WP 18).134 EN .605). 39 OJ C 329 of 4. as well as with European law in general. Community law also includes texts dealing with extra-territorial telephone tapping. 23 November 1995.htm’.fr/data protection/Treaties/project%20de%20 protocol%20F. 38 and 50-51.coe. when implementing telecommunications in interception measures. Vol.057/fin. PE 232. and to do so before such acts are carried out. 1-6. Similar concerns moved the European Parliament in February 2000 to delete Article 18 of the draft Council 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. which cannot be unknown to the EU States which are also parties to Echelon. 41 The draft convention is available on ‘http://conventions.htm’. Schmid on the draft Council resolution on the lawful interception of telecommunications in relation to the new technologies. WP 31 and CA07/434/00/EN. is a source of some concern as the States are attempting via third pillar’ policies to set up machinery derogating from the domestic rights protecting privacy against telephone tapping and in doing so disregarding the basic 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 Article 29 working party on the protection of personal data.

See also in Community law inter alia Directive 97/66/EEC (OJ L 24. Doc. Switzerland judgment of 16 February 2000. 48 See the Amann v.coe. General PE 300. 49 This 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 the automatic processing of personal data (http:/222. Articles 90b et seq. authorises judicial and administrative interception. See the full article to appear in the RBDI. Echelon in conflict with the European Human Rights Convention (a) How it contravenes the Convention 1.2000). Article 53 of the European Human Rights Convention gives precedence to domestic law over the Convention if it gives greater protection of the rights it underpins.htm). which are not present in the Echelon case. § 65. Parl. 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 explicitly mentioned in it 47.European Union44. The scope of 'private life' is a broad one and may not be restrictively interpreted as 'the respect for private life encompasses the right of the individual to initiate and develop relations with others'48. 4. 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. prohibit administrative telephone tapping45. 12. pp.doc . 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 on Civil and Political Rights (The right to the protection of the law against arbitrary or unlawful interference with privacy. § 41. 30. home or correspondence or to unlawful attacks on honour and reputation (Article 17). 1999-2000. 47 Klass v Germany judgment of 4 July 1978. 46 The issue of telephone tapping and electronic interception is also dealt with in Article 13 of the Convention which recognises the right to an effective remedy. 50 0213/001 and 50 0214/001. like Belgium.1998). This is the case here as the Strasbourg Court in some circumstances.5. family. 45-47 and point 17 of the annex to recommendation R (95)13 of 11 September 1995 of the Council of Ministers of the Council of Europe on the criminal procedure problems related to information technology. 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. 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 by any administrative authority going beyond purely technical aspects. Chamber. 'there is no reason in principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional and business nature'. The Lieutenant General heading the general intelligence service of the Belgian Army also rightly claimed before the R Committee that Echelon would be unlawful in Belgian (De Morgen. which may also be regarded as being flouted in several respects. It is noteworthy that many European instruments expressly refer to Article 8 of the European Human Rights Convention in order to indicate to States how to regulate telecommunications pursuant to that provision49.134 EN 10/22 CM\433563EN. Protection under Article 8 of the Convention against telephone tapping and its modern variants46 At an early stage. 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. so. cognisance and recording of private communications and telecommunications (Articles 219a and 314a of the Penal code.1.

the taking of photographs or the keeping of records of interviews60. 58 G. 8-2). These principles govern both judicial and administrative interception although there are certain individual features inherent in the latter58. 15225/89.dhcour. in the knowledge that 'the existence …. Judgment 26 March 1987. 52 One single telephone tap is enough to constitute interference as the Court ruled in its judgment Malone v. The judgment in the Klass case set out the conditions for compatibility with Article 8 with particular vehemence.134 EN .txt'. judgment in Amann v. characterising as they do the police state. Thus if all aspects of Echelon. § 42. 2nd edition. of legislation and practices authorising and establishing a system of secret communications surveillance is in itself interference'52. 23 November 1993. Economica. but also to other methods of investigation such as the taking of fingerprints. Any interference51 taken in isolation and in whatever medium used. asking questions about a person's private life. Judgment 25 March 1998. Cohen-Jonathan. This paragraph. Article 8 of the Convention applies to them all55 . All these principles are also applicable to the memory storage of data relating to privacy59. 16 February 2000. App. The same applies whether tapping aimed at one individual is carried out on a line belonging to a third of personal data in the area of telecommunication services. are tolerable under the Convention only insofar as strictly necessary for safeguarding the democratic institutions'57. 330. § 44. 'the cardinal issue arising under Article 8 in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (Art. Friedl v. RTDH 1994. from the initial interception down to the last detail Observation No 16 of 8 April 1984. 55 Halford v UK. France. Cologne. is to be narrowly interpreted. 25 March 1998. 'http:/www. Switzerland. Nor does it matter much whether the intercepted calls are to or from the home or business premises. §§ 49 and 52. § 48. For the European Court of Human Rights this guarantee had to apply to telephone conversations as well as mail.unchr. Wiarda. since it provides for an exception to a right guaranteed by the pp. which may be consulted on the UN High Commissariat for Human Rights site at the following address: 'http://www. p. The Court's wish to make the European Human Rights Convention technologically relevant therefore had to be regarded as authorisation for placing the whole range of telecommunication services. 57 Klass Judgment. 'Les écoutes téléphoniques' in Mélanges G. UK. Judgment 25 June 1997. 'Les écoutes téléphoniques' under Judgment A v. Karl Heymans Verlag. § 21. Wachsmann. Judgment 24 August 1998. 582-583.coe. stating that the protection established in this provision also extended to the guarantee of the secrecy of correspondence. § 65. Switzerland. Our emphasis. 60 Commission report of 19 May 1994. pp. § 50. 27 June 1984.331. Switzerland. §8. allowing communication or correspondence between subscribers or users under the protection referred to in Article 8 of the European Human Rights Convention50. personal searches. No. §53. 50 Explanatory memorandum to recommendation No R (95) 4 of the Committee of Ministers of the Council of 59 Leander v. Nor is the actual content of the intercepted communication particularly important54.nsf'). 100. Paris. § 29. 51 By definition interference implies a constraint on the right to privacy: see Coussirat-Coustere 'Article 8(2)' in La Convention européenne des droits de l'homme – Commentaire article part article. France. 56 Lambert v.doc 11/22 PE 300. CM\433563EN. Sweden. It matters little whether the recordings made are subsequently used53. judgment in Kopp v. therefore has to comply with Article 8.s 53 Kopp v. 1999. Austria. §64. with particular reference to telephone services adopted by the Committee of Ministers on 7 February 1995 was very revealing. 1988. 54 Report of the European Human Rights Commission of 2 September 1992 quoted by P. Powers of secret surveillance of civilians.

The judgments in A v. para. Otherwise there would be a breach of the 'R. para. 64 Judgment in Barthold v. 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. and comply with the provisions laid down by domestic law. 27 of the Khan judgment of 12 May 2000. on the one hand.doc . The judgment of the third section will become final only after expiry of the three-month time limit for appeals to the Grand Chamber of the Court. as it all seems so pre-ordained.4. 47. UK of 25 June 1997. of any 'law' governing the telephone tapping contested in these cases. Germany of 25 March 1985. Too often we forget. of which we do not know whether it regulates interception nor if it designates which legislation applies.P. para. However.I. 66 In particular because the Home Office circulars could be consulted only in the House of Commons Library: para. 49. and Halford v. clear and precise65. to. really be regarded as a 'law'? If indeed there is a 'law' governing Echelon. Bearing in mind that section 309 of the Intelligence was 61 The legitimacy requirement is not examined here (see the article to appear in RBDI). even when it is as complex and technical as that relating to telecommunications. or within British territory. nor how it treats the rights of nonfounder countries which simply host an interception site on their territory. the statement in Article 8 that interference with the right to privacy has to be 'in accordance with the law' means that the lawfulness requirement is complied with if domestic law. that interference in a guaranteed right. it has however just been done in the judgment in Dulaurans v. 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 cumulative conditions: lawfulness. confines the scope for telephone tapping to conversations from.'. para. to be 'in accordance with the law' for the purposes of the Convention. Switzerland. when it allows telephone tapping or the retention of personal data. UK judgment of 26 April 1979. 62 PE 300. 65 Judgment in Groppera Radio AG and others v. 38. It is no easy matter to decide what law is applicable to Echelon (US law? On its own or in conjunction with UK law? The laws of all the countries participating?). para. The circulars which were followed could in fact only be consulted in the House of Commons Library66. hence. But can the secret UKUSA agreement. 50. In this respect we should note that the Regulation of Investigatory Powers Act adopted on 25 July by the UK Parliament in clause 2. Sunday Times v. It is true that international law. the third to go against the UK on the question of tapping. While consideration of conformity with domestic law is quite exceptional in Strasbourg case law. 68.of data processing are liable to analysed in the light of Article 8. France of 23 November 1993. legitimacy and necessity in a democratic society61. may have the status of 'law' if it is sufficiently accessible. The Khan judgment of 12 May 2000. both went against the respondent States because of the absence of any domestic legal basis and. France Case of 21 March 2000 on the grounds of a clear error of assessment by the French 'Cour de cassation' which had rejected an appeal. 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. on the other64. para. is sufficiently accessible on the one hand and sufficiently foreseeable on the other62. According to the case law established by the Strasbourg Court since the Sunday Times judgment. as the Court declines to stand in for the national authorities in this respect. UK judgment of 26 April 1979. 63 Sunday Times v. 28 March 1990.134 EN 12/22 CM\433563EN. 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. 48. this law would still have to be sufficiently accessible. has to have a domestic legal basis (which is not always the case with English law)63.

but the Act does not regulate in detail the case of persons monitored "fortuitously" as "necessary participants" in a telephone conversation recorded by the authorities pursuant to those 67 Leander judgment. Spain judgment. tried on 16 February 2000. In assessing whether the criterion for foreseeability is satisfied. paras. UK. 51. 73-74. paras. para. the requirement of foreseeability in the special context of secret controls of staff in sectors affecting national security cannot be the same as in many other fields. 70 Valenzuela Contreras v. a breach of Article 8 of the Convention had occurred in view of the lack of foreseeability of the Spanish law.doc 13/22 PE 300. account may be taken also of instructions or administrative practices which do not have the status of substantive law. paras. (…) the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life. the contested tapping and creation of a card relating thereto took place in 1981 but were not known to the applicant until 1990. 27 June 1984. even if we assume there is an applicable law and that it is sufficiently accessible. The Court considered that the Swiss Code of Criminal Procedure was not foreseeable enough as 'the primary object of the (…) Act is the surveillance of persons suspected or accused of a crime or a major offence (…) or even third parties presumed to be receiving information from or sending it to such persons (…). one might well ask what accessibility there is to legal acts of which even the parliaments of the main parties to Echelon are kept ignorant. (…) Nevertheless. insofar as those concerned are made sufficiently aware of their contents'67. See also the conclusion that Article 8 had been breached in the Kopp v.conducting Authorisation Act for Fiscal Year 2000 of the US Congress sought to know the legal basis on which the NSA electronic interceptions. 79. para. In the Amann v. Switzerland Case. on the heels of the judgments against France in the Huvig and Kruslin Cases in 199069. a limit on the duration of telephone tapping. 32 and 33 respectively. which is an essential criterion for the lawfulness of interference in privacy. 68 CM\433563EN. etc. the Valenzuela Contreras v. we may also doubt its foreseeability.134 EN .70. UK Case as the Court could not say 'with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive'68. Moreover. Switzerland Case of 25 March 1998. Judgment. The Leander v. 26 March 1987. when the public learned of the existence of an index containing the outcome of requests for information and the applicant was able to consult his card. has been missing in several telephone tapping cases the Court has had to consider. the precautions to be taken in order to communicate the recordings for inspection by the judge and defence. Malone v. Spain judgment of 30 July 1998 established as general principles governing telephone tapping the safeguards a 'law' governing tapping had to offer to be 'foreseeable' and thus to comply with Article 8: the definition of the categories of people liable to have their telephones tapped. And. 46 and 59: even if improvements to domestic law in terms of legislation or case law had occurred between the disputed interception and the judgment of the Court. in a system applicable to citizens generally. Sweden judgment of 26 March 1987 illustrates how the Court assesses the nature of the 'law' n the event of secret interference with privacy: 'However. the nature of the offences which give rise to such an order. 69 Huvig and Kruslin judgments of 24 April 1990. the procedure for drawing up the summary reports containing intercepted conversations. The foreseeability of a law. the circumstances in which recordings may or must be erased. It happened in the Malone v. 30 July 1998.

the Court points out that the domestic legislature enjoys a certain discretion.134 EN 14/22 CM\433563EN. which should normally be carried out by the judiciary. 43. the decision-making process leading to measures of interference must be fair and such as to afford due respect to the interests safeguarded to the individual by Article 8’73 .provisions. especially as his lawyer’s letters had also been opened).doc . para. para. in a case where intelligence services recorded political activities. provided an opportunity for pointing out to States how they might use their margin for interpretation: ‘as concerns the fixing of the conditions under which the system of surveillance is to be operated. 61.. 99. in particular the rule of law. is broad where national security is involved. The procedural dimension of Article 8 of the Convention is analysed in depth in the version of this article to appear in RBDI. Nevertheless. which is expressly referred to in the Preamble to the Convention. The same conclusion is reached in respect of the card which had not been destroyed when it 'had no further purpose' (paras.’72 Does Echelon provide all the substantive and procedural safeguards required by the principle of lawfulness? We may have our doubts. The rule of law implies. discretion does not mean arbitrary powers. para. 81). Thus some excessively general restrictions on the right of prisoners to conduct correspondence have been held to be a breach of Article 874. 74 Silver v UK judgment of 25 February 1983. 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. since judicial control affords the best guarantees of independence. Echelon’s violation of the principle of necessity in a democratic society While a State's margin of appreciation of the necessity for interference in privacy. In particular..). 72 Paragraph 59 of the Rotaru judgment of 4 May 2000. the Act does not specify the precautions which should be taken with regard to those persons'71. The judgment. the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to 71 Amann v. para. at least in the last resort. In the Klass case the Court began by noting the technical advances made in the means of surveillance and the development of terrorism and highly sophisticated forms of espionage. the Court maintained these strict requirements: ‘In order for systems of secret surveillance to be compatible with Article 8 of the Convention. 3. Supervision procedures must follow the values of a democratic society as faithfully as possible. para. 75-80). 73 Buckley v UK judgment of 25 September 1996. 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 (. The Buckley judgment in particular pointed out that ‘whilst Article 8 contains no explicit procedural requirements. they must contain safeguards established by law which apply to the supervision of the relevant services’ activities. But the concept of necessity above all implies that interference in privacy must meet an imperative need of society and should in particular be proportionate to the legitimate goal being pursued. The same applies to the indiscriminate opening of a bankrupt’s mail (Foxley v UK judgment of 20 June 2000. The Rotaru v Romania judgment of 4 May 2000. impartiality and a proper procedure. such as telephone tapping or the keeping of records. inter alia. The same prohibition of the indiscriminate censure of prisoners’ mail was restated in respect of an assessment of lawfulness rather than necessity (Niedbala v Poland judgment of 4 July 2000. that interference by the executive authorities with an individual’s rights should be subject to effective supervision. 76. PE 300. Switzerland judgment. 16 February 2000. which dealt with administrative telephone tapping.

363-384. The protection of guaranteed fundamental rights also in some circumstances requires the State to adopt. CM\433563EN. 77 Klass v Germany judgment of 4 July 1978. Les obligations positives dans la jurisprudence européenne des droits de l’homme. 80 Marckx v Belgium judgment of 13 June 1979. Moreover. The Court. para. the Court noted that ‘the seizures made (. surveillance cannot be exploratory or general.1 judgment of 25 February 1993. 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. 76 Miailhe v France No. Only States may of course be brought before the European Court of Human Rights. the fact that ‘so-called exploratory or general surveillance is not permitted by the contested legislation’ had some influence on the Court’s assessment of the conformity of the German system of administrative tapping77. RTDH 1995. 101. SUDRE. 60. A person has to be suspected of having committed an act liable to such investigation. the UN Human Rights Committee also insists that interference with the right to respect for private life and correspondence. This ‘system’ cannot therefore be used unless traditional methods of investigation are ineffective or have failed.. but if a judgment is given involving behaviour of individuals that is a failure to fulfil an 75 Klass v Germany judgment of 4 July 1978. 78 UNHRC general observation No 16 quoted above. above all. whether it is a question of administrative or judicial tapping. para. in which a breach of that provision in the course of customs searches and seizures was established.75 At this point we may consider the exploratory and general nature of a surveillance system such as Echelon. COHEN-JONATHAN notes in ‘Les écoutes téléphoniques’. 49 and 50.secret surveillance. 39. with a margin of appreciation in doing so.. This will allow Echelon to be both analysed and contested. The wholesale and indiscriminate nature of the tapping and interception involved in the Echelon programme may thus turn out to be a breach of Article 8 of the Convention79. Mélange G.J. to such an extent that the customs considered several thousand documents to be of no relevance to their inquiries and returned them to the applicants’76.doc 15/22 PE 300. certain measures to ensure the actual and specific respect of these rights: this is the theory of ‘positive obligations’81. should take place only on a case-by-case basis78. Karl Heymanns Verlag. To which add recommendation 2/99 of the Article 29 Working Party. adopt whatever measures they deem appropriate. See also Leander v Sweden judgment of 26 March 1987. F. para. Cologne. paras.) were wholesale and. 81 For a recent example see the Özgür Gündem v Turkey judgment of 16 March 2000. In the Miailhe case. 42-43. in the name of the struggle against espionage and terrorism. para. 31 was the first to mention positive obligations in so many words. (b) Conditions under which Echelon may be contested 1. 4 and 8. paras. Whether States party to the Convention may be brought to book for participation in Echelon a. p. indiscriminate. paras. 51. being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it. The positive obligations' theory focuses on the applicability of fundamental rights in relationships between individuals. as a plain breach of Article 8 of the Convention. In the Klass case. pp. affirms that the Contracting States may not. 1988.134 EN . 79 As G. as denounced in the resolution of 11 April 2000 of the European Parliament’s Committee on Civil Liberties. Authorisation for tapping therefore has to be precisely reasoned and may relate to only one inquiry at a time. WIARDA.

The vigilance requirement therefore implies a duty both to prevent the violation and to take effective action against its perpetrators85. 84 InterAmerican Human Rights Court. p. R.doc . 'Thus. However. p 96. in principle. including foreign intelligence services simply because their activities took place on its territory.T. unless Germany and the UK at least officially and publicly protest against the use of their territory by foreign intelligence services.I. COHEN-JONATHAN. PE 300. Presses Universitaires of Bruxelles. APRAXINE. An illegal act which violates human rights and which is initially not directly imputable to a State (for example. especially for States which have signed the 82 L.D. by acceding to an agreement to protect human rights a State may perfectly well be subscribing to rules imposing more onerous responsibilities. as the establishment of the international responsibility of the State does not in any way depart from the rules the UN International Law Commission is seeking to codify. 83 J. investigate and punish human rights violations. §34. Turkey of 27 June 2000 §97 and Salman v. CONDORELLI ‘L`’imputation à L’Etat d’un fait internationalement illicite: solutions classiques et nouvelles tendances’ RCADI. Responsabilité internationale. 1998-1999. LAMBERT. these states would be violating the Convention as much as general international law. 154.134 EN 16/22 CM\433563EN. Honduras judgment of 29 July 1988. 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. but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.P. and the Selmouni v.H. p. p 27. 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. 'the territorial State must nevertheless remain vigilant towards events on its territory83'. moreover. t. 85 P.obligation imputable to the State in question. preceded by commentaries by G. Ihlan v. involving a judgment against it82. 39-40. if appropriate. But. J. 1990. 'Violation des droits de l'homme par une organisation internationale et responsabilité des Etats au regard of la Convention européenne'. the duty does not disappear. not because of the act itself. involving its international responsibility and.… 87 Plattform 'Ärzte für das Leben' judgment of 21 June 1988. Velasquez v. this does not define all the circumstances in which a State is obligated to prevent.D. The European 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. R. 1999. any violation of rights recognised by the Interamerican Human Rights Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. p 467. 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. 86 See judgments for 1998 concerning Article 13 by P. SALMON and P. VI. The Interamerican human Rights Court defined this obligation perfectly and its famous Velasquez judgement. while it cannot be held responsible for the behaviour of third international parties.'84. Even if the complaint is sufficiently defensible. compensation86. extracts in. Turkey 27 June 2000. because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State.1998'. 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 implementation of a traditional duty of vigilance. nor all the cases in which the State might be found responsible for an infringement of those rights. France judgment of 28 July 1999. KLEIN. 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. §79. 1984. International practice shows. §172. §121. I.D.T.G. 1995. prosecution and punishment of the perpetrators and.E. where appropriate. 'the European Human Rights Court .

Corfu Channel case. §62. 91 European Human Rights Commission decision of 11 January 1961. judgment on preliminary objections in the Loizidou v. 1991. Turkey judgment92. COHEN-JONATHAN on 'responsibility for breaches of human rights in la responsabilité dans le système international. 1994. p. 1998. This also explains the primacy of the Convention over any other domestic or international norms. When. because in general international law there is 'every State's obligation not to allow knowingly its territory to be used contrary to the rights of others'88. Paris. conducts telephone tapping by its secret services or allows other countries' services to do so. a State. App. if it is aware of the fact and has not reacted. 90 J. Le Mans. Symposium of the Société Française du Droit International. 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 Contracting Parties: their responsibility can be involved because of acts of their authorities producing effects outside their own territory'94. Turkey case of 23 March 1995.F. and the fact that the US is not a party does not in any way lessen the former's obligations. 101-135. from its own territory. 93 See in particular H. 88 ICJ. Pedone.D.Convention. Pedone. as would appear to be the case with the Echelon programme. Pedone. The same may apply when that state 'repatriates' the product of interceptions carried out by another State on its behalf. It is the structure which gathers together these objective obligations and the system of collective guarantees which protects them which make the Convention 'a constitutional instrument of European public order (ordre public)' in the strong words contained in 1995 in the Loizidou v.I. 89 CM\433563EN. Italy. 1949. Turkey judgment of 23 March 1995 on preliminary objections. la responsabilité de l'Etat pour violation des les droits de l'homme – Problèmes d'imputation.doc 17/22 PE 300. Strasbourg Symposium of S. The very nature of the obligations incurred by the States party to the European Human Rights Convention amplify this duty of vigilance89. See communication by G. this can bring its international responsibility into play. Paris. Intercepting a conversation in Belgium from the Menwith Hill Anglo-US base involves the responsibility of the UK in respect of the Convention. 788/60. Italy91. p 18. The primacy of the Convention over other international acts of the States party 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. 94 Drozd and Janousek v.134 EN . They did not hesitate to charge States parties to the Convention with infringement in cases arising from relationships between individuals and in disputes arising from the way in which a State conducted its international relations. 'the protection of human rights and the sources of international law' in. §75. §91. Austria v. 24-28. 'La protection des droits de l'homme et l'évolution du droit international. Paris. DIPLA. No.. b. These are objective obligations90 as confirmed in the European Commission for Human rights' famous decision in Austria v. Spain and France Judgment of 26 June 1992. p. FLAUSS. 92 Loizidou v. If the failure to fulfil a duty of vigilance falls within the traditional territorial responsibility. p 141.F.

The conditions for an obvious. UK judgment of 18 February 1999 concerning the 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 . op.doc . the responsibility of international organisations in internal legal systems and international law. 470-480. Germany and Waite and Kennedy v. 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 international organisation or a third state98. More fundamentally. Member States responsibility therefore continues even after such a transfer. The Matthews v.134 EN 18/22 CM\433563EN. the Court shall lay down that States must refrain from providing assistance either by allowing the performance of the contested act or by executing it via their own legal system' 97. Acts of the EC as such cannot be challenged before the Court because the EC is not a Contracting Party. Germany judgments on immunity from the jurisdiction of the courts of the European Space Agency on German territory. even by treaty or agreement. P. 98 See P. in particular. Apraxine. Bruylant. Para 33 (…) The United Kingdom. flagrant and wholesale violation 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. Turkey judgment of 30 January 1998) . P. the Soering v. p. or Chahal v UK of 15 November 1996 judgement. para 94. UK judgement of 7 July 1989. 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. on the same day. 1998. 'in the event of flagrant and obvious violations already committed or genuine risks of violations.). Even though the UK/USA does not seem to have set up an international organisation 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. together with all the other parties to the Maastricht Treaty. Para 32. para 38. 96 The Drozd and Janousek judgment (para. in the framework of its relations with other subjects of international law. Brussels. under Article 3 of the Protocol No.” 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. para 91. 97 P. Turkey judgment of 11 July 2000. for the consequences of that Treaty. is responsible ratione materiae under Article 1 of the Convention and. As Pierre Apraxine summed it up so well. supported by serious grounds for believing in its existence. Cit. Tavernier (dir. 110) does however reserve this hypothesis for cases of flagrant denial of justice. 1. The Convention does not exclude the transfer of competences to international organisations provided that Convention rights continue to be ‘secured’. and lastly the Jabari v. the Beer and Regan v. Private international law and the problems of incorporating the Convention in to the French system in P. 27-28.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 or torture in the applicant country95) or a violation ‘imported’ into that State’s territory (for example where the court on the spot has to apply a foreign rule in private international law or a criminal conviction delivered abroad96). under inaccessible and vague rules which persons not residing on the territory of the participating countries have no means of contesting. Courbe.[Article 1] makes no distinction as to the type of rule or measure concerned. This is because the State is still responsible for its own acts and omissions in respect of the European Human Rights Convention which by virtue of Article 53 thereof takes precedence over its other international 95 For example. PE 300. 1996. pp 249-267. Bruylant. 99 See. Klein. Quelle Europe pour les droits de l’homme? Brussels.

Brussels.) a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation' 104.commitments if they are less protective of the rights and freedoms it guarantees100. 102 European Commission of Human Rights inadmissibility decision of 16 April 1991 App. De Schutter. ranks above its Party States' other international commitments even where they were entered into with other States101. 104 Klass v. 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. On the same topic L.doc 19/22 PE 300. ‘relationships between the European Human Convention and the other treaties concluded by Contracting Party States in Essays in honour of H. 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. it is necessary that the law should have been applied to his detriment. Refused to recognise as a victim an association which on the basis of Article 8 contested the absence of legislation of surveillance systems in public places on the grounds that a legal person cannot be filmed and cannot therefore be a victim of the use of cameras. No. The status of potential victim in the event of secret infringement of the right to respect for private life. inadmissibility decision of 14 January 1998. § 33. Coussirat-Coustere. CM\433563EN. 41. p. The prohibition of actio popularis in European legal systems would also appear to rule out the admissibility of applications made by associations seeking to defend collective interests. DR 70. 101 See in particular the basic study by G. App. Germany judgment of 4 July 1978. Individuals wishing to 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 Court therefore accepts that an individual may. p. Cohen-Jonathan. under 100 V. Legal persons may however lodge applications if they can prove they are victims of a breach of Article 8. Schermers. No. The Klass judgment did however apply the concept of a potential victim in respect of secret surveillance measures such as phone tapping: 'In principle. 63.134 EN .T.). 79-111. 262. 145-150.102.E. Herbecq and association ‘League des droits de l’homme’ v.G. in particular if a company loses a market because a rival had been informed of its intentions by intelligence services. Nevertheless. The case of telephone tapping should be different especially when it results in the electronic storage of data on undertakings’ commercial policies. its international responsibility is involved not only for having allowed acts equivalent to violations to be perpetrated from its territory by non-Party States. ECHR vol.. The Court declines to assess in abstracto the conformity of a law or internal practice with the Convention. III. The Court goes on to consider that the secrecy of the measures objected to should not stand in the way of the effectiveness of the Convention which 'implies in such circumstances some possibility of having access to the Commission (. Ireland. 2. J. 103 European Human Rights Commission. 32200/96 and 32201/96. 1996. 1504/89 Purcell and others v. 18-19.. ‘European Human Rights Convention and domestic law: primacy and direct effect’ in La Convention européene de droits de l’homne. Pettiti and O. The Convention by virtue of its special nature. p. Belgium. 1992.. ‘The role of associations in the framework of the European and Human Rights Convention’. Admissibility of action against Echelon a. Nemesis. it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention. pp..E. (. 1998. p.D. In the case of the United Kingdom which would appear not to have confined itself to acting as host for a listening station (like Germany) but has taken an active part in tapping and interception. which implies that the guaranteed rights are compatible with the nature of such persons103.

quite apart from any concrete measure of implementation taken against him. Greece judgment of 15 November 1996. Nemesis and Bruylant. This general principle of international law seeks to allow the State to remedy alleged breaches 109. E. 28-29. § 86. p. p.doc . Bruxelles. 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 brought before the European Court of Human Rights is set out in Article 35(1) of the European Human Rights Convention. DECAUX and H. having been reaffirmed in a case of data recording by intelligence services. As regards the difficulties of proof see the Halford v. Following on from this case law on the status of 'potential victim'. 107 In respect of other applications: G. « Article 26 ». 1998. The scope of the supervisory body in L’interprétation de la Convention européenne des droits de l’homme. Even more specifically. 1999. TAVERNIER. if special circumstances make remedies impossible or pointless. Paris. § 41. Brussels. de BRUYN. 1999. if no adequate legal channels are open to the applicant. 2nd edition. either expressly or in substance. LE. UK judgment of 25 June 1997. 2nd edition. PETTITI. the Rotaru judgment. 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 law 110. §§ 57 to 60. In May 2000 the Court was therefore still authorising individuals to claim that status which. 106 Klass v. stated that 'a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a 'victim' unless the national authorities have acknowledged. 57-60. 184-187. 603-610. simply because the applicant was a member of a class of persons potentially liable to be directly affected by this practice. 'any of the permitted surveillance measures. would result in an interference by a public authority with the exercise of that individual's right to respect for his private and family life and his correspondence. for all those to whom the legislation could be applied. and then afforded redress for. p. Montchrestien. which is not voluminous but does vigorously protect the individual 107. We shall be considering the latter hypothesis alone here. Furthermore. will be all the more important in contesting Echelon. UK of 27 June 1984. 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. IMBERT. PE 300. p. if there is no chance of success with existing remedies. Actions within the framework of a global 105 Klass judgment. the breach of the Convention' 108. § 34. without having to allege that such measures were applied to him'105.134 EN 20/22 CM\433563EN. PICARD. b. La Convention européenne des droits de l’homme – Commentaire article par article. 111 E. § 30. in the mere existence of the legislation itself there is involved. Germany judgment of 4 July 1978. 109 P. Aspects européens des droits fondamentaux. in. in La procédure devant la nouvelle Cour européenne des droits de l’homme après le Protocole n° 11. Economica. § 35 and references to earlier cases. COHEN-JONATHAN.certain conditions. 110 Ahmet Sadik v. Paris. once applied to a given individual. 1999. Nemesis et Bruylant. referring explicitly to the Klass judgment. Also D. this menace necessarily strikes at freedom of communication between users of the postal and telecommunications services and thereby constitutes an 'interference by a public authority' with the exercise of the applicants' right to respect for private and family life and for correspondence' 106 . which allowed the applicant to claim to be a victim of metering of telephone calls. See also Malone v. claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures. Romania judgment of 4 May 2000. a menace of surveillance. ' Exhaustion of domestic remedies'. 108 Rotaru v. if unlawful 'administrative practices' make the use of any remedy pointless111.

114 K.B.) it 112 For amplification see the Article to appear in R.D. 113 Ireland v.134 EN .cit. before approaching the European Court of Human Rights. Turkey judgment of 16 September 1996. to exhaust any remedies established by the domestic law of the countries. § 88 and § 67. HANNUM. especially as regards the judgment of 1 July 1999 by the International Court of the Law of the Sea in the Saïga case which considered that where a State had exercised its 'jurisdiction' (in this case arrest outside territorial waters) in breach of international law. with the aim of preventing its continuation or recurrence..I. op. there was no need to exhaust the remedies provided by the law of that country. that gravity to depend on both the flagrancy of the violation and the importance of the rights violated. a practice does of itself constitute a violation separate from such breaches' 116. The third and final condition is 'the tolerance of these facts by the respondent state. In the light of the European Court of Human Rights' consistency and rigour in its case law. treating secret surveillance of the citizens as a characteristic of a police state. BOYLE and H. 115 Akdivar and others v. This notion of administrative practices was extended to individual applications by the case law of the old Commission 114. the importance of the rights that have been violated cannot be in doubt. A.I.. legitimacy and necessity. 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. UK judgment of 18 January 1978.doc 21/22 PE 300. Turkey case it ruled that 'there is no obligation to have recourse to remedies which are inadequate or ineffective. UK case is unambiguous 'A practice incompatible with the Convention consists of an accumulation of identical or analogous breaches which are sufficiently numerous and inter-connected to amount not merely to isolated incidents or exceptions but to a pattern or system.. In the Akdivar and others v. Professor Picard has summed up the conditions for it to exist 117. UK judgment of 18 January 1978. As we have seen. « Individual applications under the European convention on Human rights and the concept of administrative practice : the Donnelly case ».J. 1974. but does not ask (. The definition of an 'administrative practice' laid down in the Ireland v. The Ireland v.. 116 Ireland v. « Article 26 ». according to the "generally recognised rules of international law" there may be special circumstances which absolve the applicant from the obligation to exhaust the domestic remedies at his disposal. the Echelon programme seems to be a pattern or a system itself.. § 159.. PICARD.L. 117 E.) the Court to give a decision on each of the cases put forward as proof or illustrations of that practice » 113. p 809. 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. taking part in that programme 112. § 159. (. In addition. which are moreover contracting parties to the Convention. UK judgment had already established in connection with an inter-state application that 'in principle. The second condition for the existence of an administrative practice is the repetition of the violations.electronic surveillance programme such as Echelon are claimed to be a body of administrative practices whose existence removes the need. 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 taken separately meets the three cumulative requirements of lawfulness. CM\433563EN. 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. and is of such a nature as to make proceedings futile or ineffective' 115. the rule does not apply where the applicant State complains of a practice as such. pp 440-453. 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 authorities has been shown to exist. The first is the gravity of the violation of the Convention by the contested acts.

While the Strasbourg case law. United Kingdom judgments. all three of which went against the respondent State. p 79. in P. Rotaru v. the Rotaru judgment (§ 47). characterising as they do the police State. FLAUSS. in Mélanges P. § 42 and lastly. Bruylant. Switzerland. once they are sufficiently widespread. may lead to an assumption of tolerance. « Existe-t-il un ordre public européen ?»..). But what an example … 118 The UK Prime Minister simply stated that 'the United Kingdom had not betrayed its European partners by its close collaboration with the United States ( La Libre Belgique 24. Quelle Europe pour les droits de l’homme. henceforth applied in the new context of Protocol No 11. Bruylant. 'European public order could not tolerate a situation in which these values might be ignored on the territory of a contracting party State on the grounds that doing so was the result of a foreign judgment or act' 120. pp 348-353. The Echelon international programme goes far beyond the need for the interception of telecommunications. Germany judgment op. 121 For some time judgments have clearly tended to increase the duties on States (in particular by a very protective interpretation 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.2. the strict conditions governing which have just been repeated again by the European Court of Human Rights in 2000 in its Amann v. Bruxelles. 2000. Romania and Khan v. cit. The 'international' character of such interception does not change anything or.doc .2000 and Le Monde 25.2000). That is the view the European Court of Human Rights has taken of telephone tapping since 1978. * * * * * 'Powers of secret surveillance of citizens. as Professor Sudre put it so well. occasionally runs into turbulence. governments not being entitled to plead either ignorance of the activities nor their inability to put a stop to them'. 120 F. This in singular contrast with the proliferation of public and private interference with the right to respect for private life of which Echelon is only one example. Brussels. F. TAVERNIER (dir. 1996. The various denials are hardly convincing now 118. LAMBERT. PE 300. are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions' 119. 119 Klass v. it is a field in which increasing protection on principle for the individual is a constant factor: protecting privacy against secret surveillance 121.2.would appear that the very existence of these practices.134 EN 22/22 CM\433563EN. SUDRE. in a democratic society. 'La Cour de Strasbourg face aux violations systématiques des droits de l’homme'.

europarl.htm. Addendum: 1 domain also required the web and e-mail addresses of the European institutions to be adapted. mailto: for e-mail addresses etc.europa. a reference to the page where the address was found and the type of address: http: and https: for web addresses.New .htm. Page: 6 Type: http: Old: Below please find a list of addresses found in the document at hand which have been changed after the document was The list shows the old and new Domain Changed Web and E-Mail Addresses The introduction of the . New: http://www.