In April 2014 the European Court of Human Rights (ECtHR) communicated the case of Olev Lüütsepp v Estonia. The central issue in the case is whether there is a requirement to notify a person if they have been the subject of surveillance. ARTICLE 19 and Privacy International, as the leading organisations on the right to freedom of expression and right to privacy respectively, have submitted a brief to the ECtHR as a third party.
Mr Olev Lüütsepp is the sole member of the board of a non-profit organisation MTÜ Võru Jäätmekeskus. Criminal proceedings were instituted in 2010 concerning the legality of the activities of the non-profit organisation. The proceedings were later terminated. Mr Lüütsepp suspected that he had been the target of secret, and possibly unlawful, surveillance activities so requested to examine the surveillance file in the criminal case. Both the Southern District Prosecutor’s Office and the Office of the Prosecutor General responded that it was not possible to divulge whether he has been the subject of secret surveillance. Mr Lüütsepp subsequently lodged an appeal to the Tartu County Court. The court declined to examine the appeal on the grounds that no appeal lay against a written reply of the Office of the Prosecutor General. It was also held that it had no information at its disposal about whether or not the applicant was the subject of secret surveillance and the Prosecutor’s Office had a legal right not to notify the person concerned about the surveillance. The ruling of the County Court was final and not subject to appeal. In March 2014 the Constitutional Review Chamber of the Supreme Court decided on the constitutionality of the regulation concerning the non-notification of persons who has been subject to secret surveillance under the regulation in force prior to January 2013. The Supreme Court held that the regulation was unconstitutional.
Mr Lüütsepp submitted a complaint to the ECtHR stipulating that these actions breach Article 6 § 1 and Article 8 of the European Convention on Human Rights. He claims that the domestic court did not examine his complaint concerning his secret surveillance, violating his right of access to a court, and that carrying out the surveillance activities infringed his right to respect for his private life.
Summary of our submissions
Our third-party intervention surveys the history of the jurisprudence of the ECtHR on notification of surveillance and details the international and comparative legal context on the notification of surveillance. It concludes that the court should recognise that notification is an essential safeguard against the abuse of power. In summary, it states that:
- the requirement to notify a person that they have been the subject of surveillance has been recognised by the Court as an important safeguard against the abuse of surveillance powers under Article 8, part of the right to an effective remedy under Article 13, and a trigger for the fair trial guarantees of Article 6;
- recent rapid changes in communications technology have led to an unprecedented increase in the amount of surveillance, especially digital surveillance;
- in response to these changes, international law increasingly recognises the requirement to notify a person that they have been the subject of surveillance as a necessary safeguard, rather than merely a desirable one;
- the comparative experience of a broad range of jurisdictions show that notification requirements are also widely regarded as a necessary safeguard against the abuse of surveillance powers;
- the Court should therefore take this opportunity to clarify its case law in order to make clear that notification is a necessary safeguard against the abuse of surveillance powers under Article 8, an essential part of the right to an effective remedy under Article 13, and a necessary trigger for fair trial guarantees of Article 6.