European Court of Human Rights categorically against mass wiretapping

The European Court of Human Rights lately ruled that it is illegal for a government of a state to conduct mass wiretapping on its citizens. In a trial that didn’t receive any publicity in Hungary, the Court ruled that the Hungarian government had violated Article 8 of the European Convention on Human Rights (the right to privacy), as it failed to include “sufficiently precise, effective and comprehensive” measures that would limit wiretapping to only citizens it suspected of crime.

Under the National Security Act of 2011, a minister of the government has the right to approve police surveillance and wiretapping only for  cases concerning national security. This law does not provide the circumstances under which such surveillance can be ordered. A minister can order the surveillance for 90 days, and extend it by another 90 days.

The Hungarian case is neither the only one, nor the first of its kind. Two Hungarian activists, Mate Szabo and Beatrix Vissy, sued the Hungarian Government in 2014, claiming it had infringed their human rights. The court, in regards to their case, ruled that the Hungarian law did not provide guarantees against the abuse of the human right to privacy and said that the Hungarian government should interpret the law in a narrow fashion and to “verify whether sufficient reasons for intercepting the communications of a specific person exist in each case”

Or, in other words, each individual case has to be looked at carefully and the decision that will be made has to be adjusted to that individual case. This, of course, would be impossible if the law allows mass surveillance to be carried out.

The Court on human rights in the Hungarian case, referred several times to a recent case in Russia, when in December the Russian government was accused of violating the same Article 8 of the European Convention on Human Rights (right to privacy, namely, mass surveillance of citizens’ telephone calls). In that case, Roman Zaharov complained that the Russian law had violated his privacy, because the mobile operators had equipment with which they easily intercepted all of his telephone communications.

The case of Zaharov was decided by the Grand Chamber of the ECHR, whereas, for the Hungarian case, the judges called the Fourth Section, nonetheless, the judgment is binding for all European countries. The Fourth Section is part of the ECHR, which includes the United Kingdom, and the decision will most probably have an influence on the controversial legislation that the government of the United Kingdom is currently trying to pass, which would enable similar mass surveillance under the control of a minister.

This month many of the current measures that are proposed in the United Kingdom, will almost certainly violate Article 8. It should be noted that the decision does not prohibit the surveillance of citizens, nor does it require judicial oversight of such surveillance. However, it is quite clear that such surveillance has to be directed towards an individual and that it should not be used more broadly.

In that sense, and in combination with the “Zaharov Case”, it seems that the European Court on Human Rights has proceeded categorically against mass surveillance. The decision of the ECHR cannot stop the Government of the United Kingdom to pass legislation that allows mass surveillance. However, it does mean that the United Kingdom as well, will almost certainly be responsible before the ECHR, if it is found to have violated the European Convention. The Government of the United Kingdom can of course continue to ignore that ruling, but it would face fines and by this, it would lose its international position and its reputation.

Where is Macedonia in this sphere?

Since its independence, Macedonia has been shook by many spying and illegal wiretapping scandals: “Blue Bird”, “Duvlo”, “Shaklev”, “The big ear”, “Spy” and the newest “Coup”. From the legal aspect, only “The big ear” had an ending. For all of the other cases, the applications and findings are in the prosecutors drawers or in some of the state underground rooms. This type of practice just moves Macedonia further away from the values and commitments of the European Union.

Under Article 9 of the Law on interception of communications, an order for interception of communications for detection and prosecution of perpetrators of criminal acts in Macedonia, shall be issued by the competent judge, at the request of the Public Prosecutor, on their own initiative or on the proposal of the authorized officer by the MOI, or members of the Financial Police and Customs. According to Article 260 of the Code of Criminal Procedure, the duration of this type of communication surveillance may last no longer than 14 months.

In Macedonia, only the Agency for Electronic Communications can have oversight of the work of the operators, and only upon the request of an authorized body (Article 175, item 10, Law on Electronic Communications).

This means that it is precisely the state authorities that need to request oversight of an operator for surveillance of its communication. In terms of monitoring the legality of the execution of powers of the Administration for Security and Counterintelligence – UBK and for the surveillance of the communications from the Ministry of Interior and the Ministry of Defense, that is under the competency of the Commission for monitoring the work of UBK and the Intelligence Agency in the Assembly of Macedonia and the Committee for supervision over the implementation of the measures for surveillance of the communications by the Ministry of Interior and the Ministry of Defense. Previous practices have shown that this oversight cannot be implemented in Macedonia.

According to information given by SDSM leader Zoran Zaev, in Macedonia in the past four years, telephone conversations of over 20.000 people have been wiretapped, mainly of influential people in society, but also of ordinary people. They have been constantly a subject to illegal surveillance and intercepted by the authorities, which in some cases lasted up to 18 months, thereby, violating Article 260 of the Code on Criminal Procedure.

By: Biljana Everette