European Court of Human Rights

Resolution CM/ResDH(2011)83¹

Execution of the judgment of the European Court of Human Rights

Liberty and others against the United Kingdom

(Application No. 58243/00, judgment of 1 July 2008, final on 1 October 2008)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violation of the Convention found by the Court in this case concerns the right to respect for private life, due to the unforeseeable character of the legislation in force between 1990 and 1997 which conferred on the authorities very wide discretion to monitor certain electronic communications (violation of Article 8) (see details in Appendix);

Having invited the government of the United Kingdom to inform the Committee of the measures taken to comply with its obligation under Article 46, paragraph 1, of the Convention to abide by the judgment;

Having examined the information provided by the government in accordance with the Committee’s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the applicants the just satisfaction provided in the judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its judgments, the adoption by the respondent state, where appropriate:

- of individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum; and

- of general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2011)83

Information on the measures to comply with the judgment in the case of

Liberty and others against the United Kingdom

Introductory case summary

This case concerns a violation of the right to respect for the applicants’ private life, in particular their correspondence, due to the unforeseeable character of the legislation in force between 1990 and 1997 which conferred on the authorities wide discretion to monitor certain electronic communications (violation of Article 8). Both applicants were non-governmental organisations working in the field of human rights and established in Ireland and the United Kingdom.

The Court found that under the Interception of Communications Act 1985 (ICA) the national authorities (the Ministry of Defence) had virtually unfettered discretion as to what communications could be intercepted. Under section 6 of the ICA, the Secretary of State, when issuing a warrant for the interception of external communications, was required to make arrangements to ensure that intercepted communications were disclosed and reproduced only to the extent necessary. However, the details of these arrangements were never made accessible to the public. Given this lack of accessibility, the Court concluded that the domestic law did not indicate with sufficient clarity the scope or manner of exercise of the state’s very wide discretion to intercept communications. The interference was therefore not in accordance with the law.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

b) Individual measures

Any correspondence intercepted between 1990 and 1997 is now held under the new legislative regime, the Regulation of Investigatory Powers Act 2000 (RIPA) and the Interception of Communications Code of Practice enacted under RIPA (see General Measures below). Consequently, no further individual measure was considered necessary by the Committee of Ministers.

II. General measures

The Interception of Communications Act 1985 was replaced by the Regulation of Investigatory Powers Act 2000 (RIPA) which provides new regulations for the interception of communications. The European Court has since found in Kennedy against the United Kingdom (Application No. 26839/05) that under RIPA the interception of communications are in conformity with Article 8 (§170). The Court considered that “that the [new] domestic law on interception of internal communications together with the clarifications brought by the publication of the [Interception of Communications] Code [of Practice] indicate with sufficient clarity the procedures for the authorisation and processing of interception warrants as well as the processing, communicating and destruction of intercept material collected. The Court further observes that there is no evidence of any significant shortcomings in the application and operation of the surveillance regime” (§169).

The European Court’s judgment was sent out to the competent authorities by a circular of 24 June 2009. The judgment was published in the All England Law Reports ([2008] All ER (D) 09 Jul) and the Times Law Reports (11/07/2009).

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in this case, that these measures will prevent similar violations and that the United Kingdom has thus complied with its obligations under Article 46, paragraph 1, of the Convention.