The ECtHR’s 25.5.21 judgments in the two “bulk interception of communications and intelligence sharing” cases, Big Brother Watch and Others v. the UK and Centrum för Rättvisa v. Sweden, have received their fair share of attention, including several negative comments – ranging from “they are not landmark” but “Pyrrhic victories for privacy” to “instead of being grand” “they miss the mark.” The criticism concerns, inter alia, the Grand Chamber’s failure to require proper judicial supervision of secret-surveillance operations and its acceptance, instead, of supervision by bodies sufficiently independent of the executive who can issue binding decisions (if they are not also involved in proprio motu inspections; below.) The ECtHR, by doing so, has arguably weakened the protection provided by the ECHR “in a field where abuse in individual cases is potentially so easy and could have … harmful consequences for democratic society as a whole”.
According to the critics, it is the courts (and not bodies like the FIC) that should authorise secret-surveillance operations. Moreover, the courts (and not bodies like the IPT) should be able to conduct what the two judgments call an “ex post facto review” upon an application by someone who knows that s/he has been affected by such an operation or suspects that s/he is/has been subject to secret surveillance. (The ECtHR also requires regular proprio motu inspections.)
That the two judgments should be criticised appears natural. A close reading of “the facts”, setting out the national legal framework, together with the separate and most dissenting opinions, leaves the impression that ‘our’ secret services (the CoE member states’) are given a relatively free hand. It is doubtful, however, whether involving ‘our’ courts in the secret-surveillance process is the best way of redressing the situation.
This is because of the many limitations these courts will be facing in their authorising/reviewing role (as per the two judgments). Sometimes, the empowering legislation will be cast in very general terms; information may be presented to them in an unintelligible form or may simply be “limited”. Alternatively (or in addition), they may have to examine confidential material in camera, in the absence of the applicant or his/her counsel. These may be excluded from the proceedings altogether, being replaced by trusted ‘advocates’ who, moreover, may be the only persons given access to the courts’ decisions.
Many (although not all, according to some of the separate/dissenting opinions) of these limitations seem inevitable in the mass-surveillance context. They do not only concern the adversarial character of the proceedings. They may also raise questions regarding the meaningfulness of the control exercised by the courts who risk being seen as a rubber-stamp mechanism. These limitations will have obvious effects at the authorisation stage. However, their impact may also be felt during the ex post facto review, especially if the enabling legislation is cast in general terms, the problem being compounded by the limited participation of the persons (potentially) affected.
In the light of the above, the decision to entrust the authorising/ex post facto review function to ‘independent bodies’ might not be a bad one. Although it may be dictated by all sorts of considerations, one of its consequences is that it protects the judicial process’ integrity. In the past, this was openly accepted as one of the reasons for not making our courts responsible for preventive detention during national emergencies. Our thinking may have since evolved. However, at the same time, considerable effort has been invested in enhancing public confidence in the judiciary (Astradsson, § 283). The capital that has been carefully built might be wasted if our courts end up being perceived not as our civil liberties’ guardians but as powerless accomplices in serious invasions of privacy. Although it may be dangerous to be overly prescriptive in this difficult area, the cautious line followed in the two judgments – in so far as the issue of judicial v. independent bodies supervision is concerned – may not be totally uncalled for. Of course, the two judgments should not be read as authorising the generalised use of independent bodies as remedies in every human-rights area; nor that the search for effective ways of containing the risks involved in mass surveillance should now come to an abrupt halt.