This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2015 - week 44

• Expulsion of criminal suspect to China would expose him to risk of facing the death penalty, in violation of the Convention
• Legal safeguards regarding covert surveillance of a detainee’s consultations with his lawyer were insufficient at the time of his custody

Expulsion of criminal suspect to China would expose him to risk of facing the death penalty, in violation of the Convention - case of A.L. (X.W.) v. Russia - applicant’s forcible return to China would give rise to a violation of Article 2 (right to life) and Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights - The case concerned, in particular, the complaint by a man residing in Russia and wanted as a criminal suspect in China that if forcibly returned to China, he would be at risk of being convicted and sentenced to death. The Court considered that, given that the exclusion order against the applicant mentioned explicitly that he would be deported if he did no leave Russia before the stated deadline and that his Russian passport had been seized, he was at imminent risk of deportation to China where he might be sentenced to death. Russia was bound by an obligation, under the Convention, not to expose him to such risk.

"85. The Government submitted that the conditions of the applicant’s detention in the police station had been satisfactory and had complied with the domestic regulations. Taking into account the short duration of the applicant’s stay in the police station, the conditions of his detention were also compatible with Article 3 of the Convention.

86. The applicant maintained his claims.

87. The Court reiterates that it has already examined the conditions of detention obtaining in police stations in various Russian regions and found them to be in breach of Article 3 (see Fedotov v. Russia, no. 5140/02, § 66‑70, 25 October 2005; Shchebet v. Russia, no. 16074/07, §§ 86-96, 12 June 2008; Kuptsov and Kuptsova v. Russia, no. 6110/03, §§ 69 et seq., 3 March 2011; and Ergashev v. Russia, no. 12106/09, §§ 128-34, 20 December 2011). It noted that cells in police stations were designed for short-term administrative detention not exceeding three hours. There was no provision for supplying detainees with food or drinking water, and toilet access was problematic. Being dark, poorly ventilated, dirty, and devoid of any of the amenities required for prolonged periods of detention, such as a toilet, a sink, and any furniture other than a bench, administrative-detention cells in police stations were therefore unacceptable for periods of detention longer than just a few hours. The Court, for instance, found a violation of Article 3 in a case where an applicant had been kept in an administrative‑detention police cell for twenty‑two hours (see Fedotov, cited above, § 68).

88. In the present case the Court finds the same deficiencies. The applicant was held in an administrative-detention police cell for two days despite the fact that it had been designed for detention not exceeding three hours. By its design, the cell lacked the amenities required for prolonged periods of detention. It did not have a toilet or a sink. It was equipped only with a bench, there being no bed, chair or table or any other furniture. Toilet access was restricted. The window was covered with a metal sheet blocking access to fresh air and daylight.

89. It was disputed by the parties whether or not the applicant had been given food and drink. The Court notes that the Government did not submit copies of the police officers’ statements on which they relied to support their allegation that the applicant had been given food. Nor did they refer to any domestic provision requiring the police station to make arrangements for providing inmates of administrative‑detention cells with food or drinking water. Indeed, the Court has found on several earlier occasions that such inmates were not provided with food or water and that the possibility for their relatives to bring them food could not make up for the lack of the most basic necessities during his detention (see Fedotov, cited above, §§ 67 and 68; Shchebet, cited above, § 93; and Ergashev, cited above, § 132).

90. In view of the above the Court considers that the conditions of detention in the Krasnoselskiy District police station no. 9 diminished the applicant’s dignity and caused him distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. 

91. There has accordingly been a violation of Article 3 of the Convention on account of the inhuman and degrading conditions of the applicant’s detention at the police station from 29 to 31 August 2014."

Legal safeguards regarding covert surveillance of a detainee’s consultations with his lawyer were insufficient at the time of his custody - R.E. v. the United Kingdom - violation of Article 8 (right to respect for private and family life, home and correspondence) of the ECHR - The case was considered from the standpoint of the principles developed by the Court in the area of interception of lawyer-client telephone calls, which call for stringent safeguards. The Court found that those principles should be applied to the covert surveillance of lawyer-client consultations in a police station. The Court noted that guidelines arranging for the secure handling, storage and destruction of material obtained through such covert surveillance have been implemented since 22 June 2010. However, at the time of Mr. R.E.’s detention in May 2010, those guidelines had not yet been in force. The Court was not therefore satisfied that the relevant domestic law provisions in place at the time had provided sufficient safeguards for the protection of Mr R.E.’s consultations with his lawyer obtained by covert surveillance. As concerned consultations between a vulnerable detainee and an “appropriate adult”, the Court found that they were not subject to legal privilege and therefore a detainee would not have the same expectation of privacy as for a legal consultation. Furthermore, the Court was satisfied that the relevant domestic provisions, insofar as they related to the possible surveillance of consultations between detainees and “appropriate adults”, were accompanied by adequate safeguards against abuse.

"156. The Court has already noted that in order to be justified under Article 8 § 2 of the Convention the interference must be “in accordance with the law”, in pursuit of a legitimate aim, and “necessary” in a democratic society.

157. As with the regime for surveillance of lawyer/client consultations, the Court considers that the regime in question pursues the legitimate aims of protection of national security and the prevention of disorder and crime (see paragraph 119 above). Furthermore, for the reasons set out at paragraph 121 above, the Court finds that the regime had a basis in domestic law, namely Part II of RIPA and the Revised Code of Practice, and that that law was sufficiently accessible. It therefore falls to the Court to decide if the law was adequately foreseeable and whether the interference was “necessary in a democratic society”. As the lawfulness of the interference is closely related to the question of its “necessity”, the Court will jointly address the foreseeability and the “necessity” requirements (see also Kennedy, cited above, § 155).

158. The Court has indicated at paragraph 130 above that the subject-matter of the surveillance and the degree of intrusion will determine the degree of precision with which the law must indicate the circumstances in which and the conditions on which the public authorities are entitled to resort to covert measures. The surveillance of consultations between a vulnerable detainee and an appropriate adult, appointed to assist him or her following an arrest, undoubtedly constitutes a significant degree of intrusion. As such, the present case is distinguishable from that of Uzun, cited above, which concerned the monitoring of a car’s movements by GPS and, as a consequence, the collection and storage of data determining the applicant’s whereabouts and movements in the public sphere.

159. That being said, the surveillance was not taking place in a private place, such as a private residence or vehicle. Rather, it was being conducted in a police station. Moreover, unlike legal consultations, consultations with an appropriate adult are not subject to legal privilege and do not attract the “strengthened protection” accorded to consultations with lawyers or medical personnel. The detainee would not, therefore, have the same expectation of privacy that he or she would have during a legal consultation. Consequently, the Court does not consider it appropriate to apply the strict standard set down in Valenzuela-Contreras and will instead focus on the more general question of whether the legislation adequately protected detainees against arbitrary interference with their Article 8 rights, and whether it was sufficiently clear in its terms to give individuals adequate indication as to the circumstances in which and the conditions on which public authorities were entitled to resort to such covert measures (Bykov, cited above, § 76).

160. As it is classified as directed rather than intrusive surveillance, the surveillance of consultations with appropriate adults is permissible in a wider range of circumstances than the surveillance of legal consultations (see paragraph 44 above). In Part II of RIPA, section 28 provides that directed surveillance can take place where the authorising officer (in this case a PSNI officer of the rank of Superintendant or above) believes it is necessary in the interests of national security, for the purposes of preventing or detecting serious crime, in the interests of the economic well-being of the United Kingdom, in the interests of public safety, for the purposes of protecting public health, for the purposes of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department, and for any other purpose specified for the purposes of this subsection by an order of the Secretary of State. Nevertheless, the differences are not so great as they might first appear. The PSNI could not authorise the surveillance of a consultation with an appropriate adult for the purposes of assessing or collecting any tax or levy, and the Secretary of State has not specified any other purpose by way of an order. Consequently, consultations with an appropriate adult can only be subject to surveillance on two additional grounds: the interests of public safety, and protecting public health. Like “national security”, both terms are frequently employed in national and international legislation and constitute two of the legitimate aims to which Article 8 § 2 refers. Consequently, the Court considers that, having regard to the provisions of RIPA, the nature of the offences which may give rise to intrusive surveillance is sufficiently clear.

161. As with intrusive surveillance, RIPA does not provide any limitation on the persons who may be subjected to directed surveillance. However, paragraph 5.8 of the Revised Code, which sets out the information to be included in an application for directed surveillance, is drafted in identical terms to paragraph 6.19, which concerns intrusive surveillance (see paragraph 41 above), and, similarly, the authorising officer may only authorise directed surveillance if he considers it necessary and proportionate. It is true that fewer safeguards exist than in respect of the surveillance of legal consultations. First, the surveillance is not subject to the enhanced authorisation regime which applies to surveillance intended to result in the obtaining of information subject to legal privilege. Secondly, surveillance carried out by the PSNI may be authorised by a police officer at the level of Superintendent or above, whereas intrusive surveillance may only be authorised by a senior authorising officer, namely the Chief Constable of the PSNI or the Secretary of State. Thirdly, authorisation does not have to be approved by a Surveillance Commissioner. However, while the Court believes these safeguards to be important in the context of intrusive surveillance, particularly that of legal consultations, in the context of surveillance of consultations with appropriate adults the Court considers that no further clarification of the categories of persons liable to be subject to secret surveillance can reasonably be required.

162. With regard to additional safeguards, the Court notes that authorisations for directed surveillance must be regularly reviewed to assess the need for the surveillance to continue (see paragraph 62 above). During a review, the authorising officer who granted or last renewed the authorisation may amend specific aspects of it. He must cancel the authorisation if satisfied that it no longer meets the criteria on which it was authorised. As soon as the decision is taken that it be discontinued, the instruction must be given to stop all surveillance of the subject and the date of the cancellation should be directly recorded.

163. In any case, the written authorisation will cease to have effect (unless renewed or cancelled) at the end of a period of three months beginning with the time it took effect (see paragraph 63 above). Written renewals may only be granted for three months at a time, and in order to grant them the authorising officer must be satisfied that it is necessary for the authorisation to continue for the purposes for which it was given (see paragraph 64 above). All applications for renewal should record whether it is the first renewal or every occasion a renewal was previously authorised; any significant changes to the information in the initial application; the reasons why the authoristion should continue; the content and value to the investigation or operation of the information so far obtained; and the results of regular reviews of the investigation or operation (see paragraph 65 above).

164. Detailed records pertaining to all authorisations must be centrally retrievable within each public authority and be retained for at least three years from the end of each authorisation (see paragraph 73 above). Moreover, it is the role of the surveillance commissioners to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. In doing so, they have the power to quash authorisations and order the destruction of any records relating to information obtained by authorised conduct (see paragraph 78 above).

165. Other than that which is subject to legal professional privilege, information obtained by secret surveillance may be used in evidence in criminal proceedings. However, the admissibility of such evidence would be subject to the control of the trial judge. In certain circumstances it would also be open to the trial judge to stay a prosecution for abuse of process (see paragraph 153 above).

166. Finally, any citizen who believes that they have wrongfully been subject to surveillance may bring a claim to the IPT and, save for vexatious or frivolous claims, the latter tribunal must determine any such claim. The IPT has the power to award compensation and make such orders as it thinks fit, including the quashing or cancelling of any order and the destruction of any records (see paragraph 79 above).

167. The foregoing considerations are sufficient to enable the Court to conclude that the provisions concerning directed surveillance, insofar as they related to the possible surveillance of consultations between detainees and appropriate adults, were accompanied by adequate safeguards against abuse.

168. Accordingly, no violation of Article 8 of the Convention can be found under that head."

Texts are based on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments.