On 24 May 2022, ARTICLE 19, together with Berkeley School of Law, EFF, Fundación Karisma, and Privacy International submitted an amicus brief before the Inter-American Court of Human Rights in the case of Members of José Alvear Restrepo Lawyers’ Collective (CCJAR) v Colombia, in which members of the CCJAR have been subject to arbitrary and unlawful state surveillance. In our submission, we examine how the Colombian authorities have intercepted and surveilled communications of members of the CCAJAR based on intelligence powers that fail to protect against abuses and that violate human rights.
New technology designed to surveil communications is being developed and deployed at an increasingly fast rate. As a result, States have used these new technologies to enhance their surveillance systems and adopted legal frameworks to regulate their use. However, we have noted that these surveillance frameworks and ensuing practices often fail to comply with international human rights standards and in fact enable more state surveillance.
In this case, members of the CCAJAR, a non-governmental organisation that defends human rights in Colombia, have been subject to systematic and unlawful state surveillance. This surveillance carried out by Colombian intelligence agencies has severely impacted the group’s human rights, particularly its right to privacy, freedom of association, freedom of expression and freedom of movement. CCAJAR members’ essential human rights activities have been hindered by this unlawful surveillance. Among other measures, they have been forced to change their residences and live in exile due to the acts of violence, threats and harassment they have suffered as a result of the state intelligence operations. This also has an undeniable impact on the lives of their families and their children. Our submission addresses this long list of human rights violations, raises concerns about Colombia’s Intelligence Law 1612 (Intelligence Law adopted in 2013) and provides an extensive set of existing standards on protection against targeted and unlawful surveillance against human rights defenders. Despite the adoption of the Intelligence Law in 2013, Colombian intelligence agencies have continued to surveil, harass and attack CCAJAR members.
While international human rights law allows for restrictions on the right to privacy when they strictly comply with the test of legality, legitimacy and necessity and proportionality, surveillance remains an inherently disproportionate practice and causes a major chilling effect on freedom of expression, among other rights.
This case is an opportunity for the Court to examine the compatibility of Colombia’s Intelligence Law with the American Convention on Human Rights (American Convention) and set standards on the legal protections for human rights defenders against state surveillance.
Our submission, which is based on international human rights standards, highlights the following:
- Colombian intelligence agencies have arbitrarily and unlawfully gathered information on political candidates, judges, prosecutors, journalists, and human rights defenders through communications surveillance;
- Colombia has created an expansive, complex and highly intrusive communications surveillance system that fails to comply with its obligations under international and regional human rights law;
- Colombia has failed to adequately regulate communications surveillance by intelligence agencies, which has led to severe interference with the rights and freedoms of the members of CCAJAR, but also of their families, including their children.
- The Intelligence law is vague and overly broad, leaving room for abuse by law enforcement and intelligence agencies to target individuals arbitrarily, particularly human rights defenders.
- Communications surveillance should be subject to prior judicial authorisation and independent oversight to safeguard against abuse;
- The public should have the right to access information on state surveillance practices, which is crucial to safeguard against abuse.
In light of the above, we would ask the Court to:
- Analyse Colombia’s Intelligence Law’s compatibility with the standards of legality, legitimacy, necessity and proportionality established by the American Convention;
- Assess the impact of state surveillance of CCAJAR members and their families on their right to privacy as well as the realisation of other human rights enshrined in the American Convention, particularly the right to freedom of expression;
- Craft robust protections to protect the rights of the child from interference by intelligence agencies.