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Home Posts tagged "Right to Private Life"

The European Court of Human Rights and Workplace Surveillance: Where is Article 31(3)(c) VCLT?

Published on November 14, 2019        Author: 

 

Although one may be familiar with criticisms of the EU’s self-contained approach to its own legal system, this case of fragmentation is not limited to the EU alone. In fact, in one of the more recent cases on the docket of the European Court of Human Right (ECtHR), it was the Court’s Grand Chamber that adopted a self-contained attitude towards the interpretation of the European Convention on Human Rights (ECHR). It did so by failing to account for EU rules concerning workplace surveillance which were relevant for the interpretation of the ECHR.

In López Ribalda and Others v. Spain (Applications nos. 1874/13 and 8567/13) (the Decision), a Spanish employer installed hidden CCTV cameras as part of an investigation into ‘inconsistencies between the stock level and the sales figures’ (§12 of the Decision). The employees were not informed about the existence of such cameras (§13 of the Decision). Subsequently, some of them were filmed while stealing (or while they were aiding other people who were stealing goods from the supermarket) and were dismissed (§§14-16 of the Decision). The dismissals were challenged in the Spanish courts as the evidence used for this was obtained through an act (covert video surveillance) which (allegedly) breached the applicants’ right to protection of privacy. However the Spanish courts rejected these claims. It was considered that the employer acted in a proportionate manner, as the measures were necessary, were limited in time and were focused on the supermarket’s checkout counters (§§19-39 of the Decision). Read the rest of this entry…

 

Has the ECtHR in Mammadov 46(4) opened the door to findings of  ‘bad faith’ in trials?

Published on July 4, 2019        Author:  and

In the recent judgment of the European Court of Human Rights (the Court) in Ilgar Mammadov v Azerbaijan  (Mammadov 46(4)) examined under Article 46(4) infringement proceedings, the Grand Chamber found that Azerbaijan had failed to comply with the Court’s original judgment in Ilgar Mammadov (Mammadov No.1) by refusing to release political activist Ilgar Mammadov, who was arrested on politically motivated charges (in violation of a right to liberty and security under Articles 5 and the  prohibition to restrict rights for purposes other than those prescribed by the Convention under Article 18 of the Convention).

This case is not only novel in being the first to be considered under infringement proceedings (see blogs by Başak Çali and Kanstantsin Dzehtsiarou), but is also highly significant for the Court’s approach to the implications of politically motivated proceedings.  Until now the Court has been reluctant to clarify its position on whether trials and convictions can be explicitly held to be in ‘bad faith’ under Article 18 of the Convention. We argue in this blog that the Grand Chamber in this case (relating to Mr Mammadov’s arrest and pre-trial detention), went substantially further than the Chamber in the second case of the same applicant, Mammadov No. 2 (relating to his trial and conviction), and has paved the way for the Court to finally open the door to the applicability of Article 18 to a right to fair trial under Article 6, or risk incoherence. 

The Court’s approach so far to Article 18

Article 18 of the Convention provides that ‘The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ There is debate about whether the wording of the provision limits its applicability to ‘restricted’ rights under Articles 5 and 8-11 of the Convention (see below). Read the rest of this entry…

 
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Intelligence Sharing and the Right to Privacy after the European Court Judgment in Big Brother Watch v. UK

Published on September 24, 2018        Author: 

On 13 September 2018, the European Court of Human Rights ruled in three consolidated cases brought by 14 human rights organisations and 2 individuals against the UK government’s mass interception program and its access to the intelligence gathered by other governments, including the United States (Big Brother Watch v. UK, nos. 58170/13, 62322/14, 24960/15.)

As noted already by Marko Milanovic, these cases are nuanced, complex, and long. I intend to focus here on one aspect, namely the way the Court assessed the intelligence sharing claim brought by the applicants (paras 416-449.) This assessment is noteworthy as that claim presents an issue of first impression for the Court. As the judgment itself notes, “this is the first time that the Court has been asked to consider the Convention compliance of an intelligence sharing regime” (para 416). (It is worth noting, however, that the recent judgment in Centrum för Rättvisa v. Sweden no. 35252/08 also touches upon this issue.)

The applicants’ intelligence sharing claim centred on the revelations, contained in disclosures by Edward Snowden, that the UK government has access to information collected by other foreign intelligence agencies, and most notably the U.S. National Security Agency (NSA). In particular, these revelations suggest that the UK government has direct and unfettered access to raw data intercepted by other governments, which it can then filter, store, analyse and further disseminate. They further suggest that the UK government has similarly broad access to information stored in databases by other governments.

From a human rights law perspective, the fundamental question raised in this case is the nature of the interference and therefore the applicable test to apply to such interference. Read the rest of this entry…

 
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