Another Case Against GCHQ Filed At The European Court Of Human Rights; Could Overturn UK's Main Snooping Law

from the pressure-keeps-building dept

Just last week we wrote about the growing number of legal challenges to GCHQ spying. Now here's another one, from The Bureau of Investigative Journalism, which is concerned about how blanket surveillance threatens the workings of a free press:

The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists' sources and communications from government scrutiny and mass surveillance.
That's an issue because GCHQ's approach of routinely collecting all communications for detailed analysis inevitably means that some data involving journalists will be swept up. As the lawyer Gavin Millar explains:
No one knows anything about what GCHQ does with the journalistic information it pulls in. This is because, startlingly, neither the legislation nor government guidance about its use says anything at all about this.

But it is inevitable that some of GCHQ's minute analysis of the data will be giving it selective access to confidential journalistic material and identifying sources. There is already much evidence that law enforcement agencies increasingly seek to access such information for their own purposes. It is an easy way of advancing their investigations. It can help to identify and deal with embarrassing whistleblowers and can forewarn of awkward stories in the offing. The same is true for the security and intelligence agencies.
Fortunately, Articles 8 and 10 of the European Convention on Human Rights give strong protection to the right to privacy and to freedom of expression. As Millar explains, in earlier judgments the European Court of Human Rights (ECHR) has made it clear that:
this Article 10 right can only be overridden by an order of a judge. And the journalist must first have the opportunity to argue before the court that there is no competing public interest which makes such an order necessary. The law under the Convention is quite clear. Covert state surveillance and accessing of journalistic information cannot be used to circumvent these important rights.

Other journalistic information and activity can only be the subject of such covert surveillance in certain circumstances. Most importantly it must be carried out under laws which are clear, accessible and foreseeable in their effects. These laws must give journalists an adequate indication of how these discretionary surveillance powers might be used against them. They also have to provide protection against arbitrary or disproportionate surveillance measures.
However, the UK law that governs this area, the Regulation of Investigatory Powers Act 2000 (RIPA), is outdated, and does not comply with those rules, Millar believes. So this latest attack on GCHQ's mass surveillance is not just an empty gesture to express annoyance: if the ECHR rules in favor of The Bureau of Investigative Journalism, the British government will be required to review the regulations around the mass collection of communications data -- to update the anachronistic RIPA, in other words.

The good news is that the ECHR has already indicated that it will accept this new case. That offers the hope that the court may be preparing to put it in the fast track along with a similar one that calls into question the UK's compliance with Article 8 of the European Convention on Human Rights. Even if the pace of Snowden's revelations has slowed somewhat in recent months, the impact of earlier leaks continues to grow.

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Filed Under: eu court of human rights, gchq, human rights, investigative journalism, journalism, privacy, snooping, surveillance
Companies: the bureau of investigative journalism


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  • identicon
    Anonymous Coward, 17 Sep 2014 @ 5:09am

    Even if they are successful in overturning the weasel words authorizing said spying, that does not mean the spying will stop. Stating the obvious - just thought I'd mention it.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2014 @ 5:16am

    The European Court Of Human Rights is a Joke

    Well, many people think that the credibility of The European Court Of Human Rights can't be very high to defend the justice when forces the release of a terrorist sentenced to 3828 years of imprisonment after being convicted for committing 24 murders and 26 years behind bars and not even asking forgiveness for her crimes.

    And not only that, dozens of other terrorist with similar sentences for mass murders must be released also.

    Their argument is that if the maximum time served is 30 years, the any reduction on the sentence must be substracted from these 30 years and not the actual 3828 years of the real sentence.

    It's not a joke?

    reply to this | link to this | view in chronology ]

    • icon
      nasch (profile), 17 Sep 2014 @ 6:11am

      Re: The European Court Of Human Rights is a Joke

      Well, many people think that the credibility of The European Court Of Human Rights can't be very high to defend the justice when forces the release of a terrorist sentenced to 3828 years of imprisonment after being convicted for committing 24 murders and 26 years behind bars and not even asking forgiveness for her crimes.

      Looks like the main issue is that they altered her sentence retroactively. Meaning they changed the law after her conviction and applied the new longer sentence. That sounds like a clear violation of justice to me.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 17 Sep 2014 @ 6:37am

        Re: Re: The European Court Of Human Rights is a Joke

        Check it again. The sentence always was 3828 years. Never was changed at all.

        The only thing the law changed agter her conviction was the way of computing *future* sentence reductions.

        reply to this | link to this | view in chronology ]

        • icon
          nasch (profile), 17 Sep 2014 @ 7:21am

          Re: Re: Re: The European Court Of Human Rights is a Joke

          Check it again. The sentence always was 3828 years. Never was changed at all.

          The only thing the law changed agter her conviction was the way of computing *future* sentence reductions.


          OK, so what happened is she was "sentenced" to a billion years or whatever, with a maximum time she could actually serve of 30 years. At the time she was convicted, reductions in sentences applied to the maximum time of 30 years. After that conviction a law was passed that said reductions could apply to the total of all sentences, rather than the maximum term. Then the court retroactively applied this law to her sentence reduction. This resulted in her serving a longer sentence than she would have if the laws in place at the time of her conviction had been enforced.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 17 Sep 2014 @ 8:17am

            Re: Re: Re: Re: The European Court Of Human Rights is a Joke

            The reductions in sentence were not applied retroactively but to future benefits still not earned.

            You can't get the benefit (or blame) from something that you have not done yet. Actually future benefits never are fixed when a criminal is convicted and in fact are subject to change.

            reply to this | link to this | view in chronology ]

            • icon
              nasch (profile), 17 Sep 2014 @ 8:57am

              Re: Re: Re: Re: Re: The European Court Of Human Rights is a Joke

              14
              .
              By a decision of 30 November 2000 the
              Audiencia Nacional
              notified
              the applicant that the legal and chronologi
              cal links between the offences of
              which she had been convicted made it possible to group them together
              (
              acumulación de penas
              ) as provided for in section 988 of the Criminal
              Procedure Act (
              Ley de Enjuiciamiento Criminal
              ) in conjunction with
              Article
              70.2 of
              the 1973 Criminal Code, in force when the offences were
              committed. The
              Audiencia Nacional
              fixed the maximum term to be served
              by the applicant in respect of all her prison sentences combined at thirty
              years.
              15
              .
              By a decision of 15
              February 2001 the
              Audiencia Nacional
              set the
              date on which the applicant would have fully discharged her sentence
              (
              liquidación de condena
              ) at 27
              June 2017.
              DEL RÍO PRADA v. SPAIN
              -
              JUDGMENT
              5
              16
              .
              On 24 April 2008, taking into account the 3,282 days

              remission to
              whi
              ch she was entitled for the work she had done since 1987, the authorities
              at Murcia Prison, where the applicant was serving her sentence, proposed to
              the
              Audiencia Nacional
              that she be released on 2
              July
              2008. Documents
              submitted to the Court by the Govern
              ment show that the applicant was
              granted ordinary and extraordinary remissions of sentence by virtue of
              decisions of the judges responsible for the execution of sentences (
              Jueces de
              Vigilancia Penitenciaria
              at first instance and
              Audiencias Provinciales
              on
              appeal) in 1993, 1994, 1997, 2002, 2003 and 2004, for cleaning the prison,
              her cell and the communal areas and undertaking university studies.
              17
              .
              However, on 19
              May
              2008 the
              Audiencia Nacional
              rejected that
              proposal and asked the
              prison authorities to submit a new date for the
              applicant

              s release, based on a new precedent (known as the “
              Parot
              doctrine
              ”)
              set by the Supreme Court in its judgment no. 197/2006 of
              28
              February
              2006. According to this new approach, sentence adjustments
              (
              beneficios
              ) and remissions were no longer to be applied to the maximum
              term of imprisonment of thirty years, but successively to each of the
              sentences imposed (see “Relevant domesti
              c law and practice”,
              paragraphs
              39
              -
              42 below).


              So the timeline was:
              1. 1989 sentenced to prison
              2. 2000 decision that the sentences could be linked together for a sentence of 3000+ years with a maximum term of 30
              3. between 1987 and 2008 earned 3282 days remission
              4. 2006 a law was passed about sentence reductions
              5. In 2008 the 2006 law was applied to her 1989 conviction and subsequent prison term

              You can argue that step 5 is OK, but I don't see how you can argue that it wasn't applied retroactively.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 17 Sep 2014 @ 10:43am

                Re: Re: Re: Re: Re: Re: The European Court Of Human Rights is a Joke

                Because the step 3 is not correct and the 3282 days remission computed in 2008 by the prison officials and proposed release date were not taking into consideration the law previously passed in 2006. The benefits discounted in these 2.5 years couldn't be from the maximum of 30 years but from the total remaining after the previous discounts.

                These were future benefits that wasn't applied retroactively. And only these. But the ECHR ruled that in this case all past and future discounts must be substracted from the maximum because so.

                The ECHR is a court where the president is the one appointed by the country of the current thing being judged and the consensus is that basically have the final decision.

                To understand all this mess that comes from the secret talks ordered by the former president with the terrorist group after 9/11 and the Madrid train bombings that let the terrists with almost no support anywhere but their local radical feuds for the next years. After the 2006 Parot Doctrine the already imprisoned terrorists outraged against their bosses and demanded them to negotiate. But to stop killing wanted all their crime partners free. Of course didn't get that but didn't go empty handed.

                The former president choosed the judge for the ECHR and promised the terrorist group that the Parot Doctrine would be revoked if was challenged at the ECHR.

                Till now the remains of what is left of the terrorist group didn't kill anyone more and their partners with dozend of murders each are being released after serving in prison at a discount.

                The joke of the ECHR is that is a political court, not a real justice court as one could expect from the name even if they twist the laws to fit the current political agenda asigned. So expect that the GCHQ ruling also be politically oriented and not guided by any actual human rights.

                reply to this | link to this | view in chronology ]

                • icon
                  nasch (profile), 17 Sep 2014 @ 11:39am

                  Re: Re: Re: Re: Re: Re: Re: The European Court Of Human Rights is a Joke

                  the 3282 days remission computed in 2008 by the prison officials and proposed release date were not taking into consideration the law previously passed in 2006.

                  Even if that's true, we're talking about 3282 days accrued between 1987 and 2008. Assuming they were accrued evenly, something like 90% occurred before the 2006 law. How do you justify changing the way that is applied after the fact?

                  reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2014 @ 5:55am

    Missing relevant data

    Does anyone remember how GCHQ forced The Guardian to destroy their data during the Snowden leaks? Techdirt itself wrote about it: https://www.techdirt.com/articles/20130819/15453424245/uk-govt-forces-guardian-to-destroy-hard-drive s-with-snowden-info-guardian-says-reporting-continues-ny.shtml

    Curious why this was not included in this article and, more importantly, will this information be presented during this court case? This is highly relevant information showing that, aside from the possibility of sweeping up journalism data, the GCHQ is knowingly and willfully obstructing journalists. If Techdirt is feeling frisky, they could perhaps file an amicus brief on the matter. ;D

    reply to this | link to this | view in chronology ]

    • icon
      Eldakka (profile), 18 Sep 2014 @ 5:12am

      Re: Missing relevant data

      Because it's not relevant?

      GCHQ directed the Guardian to destroy documents it had in it's possession that GCHQ claimed were illegally obtained. Therefore they had to be destroyed. The actual subject matter of the documents was irrelevant.

      The Guardian didn't destroy any stories or other journalistic content.

      It had nothing to do with actual surveillance, which is what the court case is about.

      If GCHQ had found out that The Guardian had the documents via their surveillance activities then it may have been relevant. However the Guardian told the government that it was in possession of these documents, it asked the government to comment on them, not to mention the fact that they published stories regarding the documents.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2014 @ 7:58am

    lawyers - clients

    The same goes for the lawyer - client relationship regarding confidentiality.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 17 Sep 2014 @ 8:32am

    regardless of the outcome on these cases, the UK will ignore them and carry on doing what it wants. i think the main reason being that the UK government and security forces have seen first hand how the government and security forces in the USA totally ignore everything and just do what the hell they like. that includes the attempts at changing the law to suit a situation and/or the evidence available at the time. they dont give a toss for the citizens or their rights at any stage and the UK equivalent are taking full note of this. in fact, the UK is becoming a 'little USA', where the only thing that maters is the 'Police State'! they like us are in the shit up to the eyeballs! i just hope that the subterranean digging is fast enough to get everyone out before the Planet changes beyond recovery!!

    reply to this | link to this | view in chronology ]


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