Amann v switzerland The return and son of...

[Donald Ramsbottom]

For those of you who couldn't bear to read the whole case, there is set out
below some of the more interesting points. These include reference not only
to the convention and domestic law, but more importantly the quality of that
law. This is pertinent so far as RIP part III is concerned as I would
suggest that the whole of part III is not formulated with "sufficient
precision" and lacks the required "clarity" referred to below.

This is especially so with reference to the nature and form of the S:46
notices, the lack of content thereof. The nature of the S:50 gagging orders
and their imprecision, indefinite time limit, and lack of control. The
definition of "protected information" is so wide that even by home office
standards it could not be construed as precise or having clarity. The nature
of a key and its definition is likewise so vague as to lack the requirements
required by the ECHR.The ability to impersonate someone is so far off the
scale that it needs no further mocking. So far as Schedule 1 is concerned
the statements on secret sureveillance and unfettered power ought to be=
 heeded.

Sorry to bang on about this but as far as I can see the ECHR has just handed
us some powerful ammo, and even if the politicians do not understand the way
crypto works they can understand the consequences of imprecision evident in
the act and the implications of this binding ruling on the UK. If nothing
else they can sound up to date clued in by quoting a case hot off the
presses. Journo's should be able to make something of it too.



"(ii)	Quality of the law


55.  The Court reiterates that the phrase "in accordance with the law"
implies conditions which go beyond the existence of a legal basis in
domestic law and requires that the legal basis be "accessible" and
"foreseeable".

56.  According to the Court's established case-law, a rule is "foreseeable"
if it is formulated with sufficient precision to enable any individual - if
need be with appropriate advice - to regulate his conduct (see the Malone v.
the United Kingdom judgment of 2 August 1984, Series A no. 82, pp. 31-32, =
=A7
66). With regard to secret surveillance measures the Court has underlined
the importance of that concept in the following terms (ibid., pp. 32-33, =A7=
=A7
67-68):


"The Court would reiterate its opinion that the phrase 'in accordance with
the law' does not merely refer back to domestic law but also relates to the
quality of the 'law', requiring it to be compatible with the rule of law,
which is expressly mentioned in the preamble to the Convention =85 The=
 phrase
thus implies - and this follows from the object and purpose of Article 8 -
that there must be a measure of legal protection in domestic law against
arbitrary interferences by public authorities with the rights safeguarded by
paragraph 1 =85 Especially where a power of the executive is exercised in
secret, the risks of arbitrariness are evident =85

=85 Since the implementation in practice of measures of secret surveillance=
 of
communications is not open to scrutiny by the individuals concerned or the
public at large, it would be contrary to the rule of law for the legal
discretion granted to the executive to be expressed in terms of an
unfettered power. Consequently, the law must indicate the scope of any such
discretion conferred on the competent authorities and the manner of its
exercise with sufficient clarity, having regard to the legitimate aim of the
measure in question, to give the individual adequate protection against
arbitrary interference."


It has also stated that "tapping and other forms of interception of
telephone conversations constitute a serious interference with private life
and correspondence and must accordingly be based on a 'law' that is
particularly precise. It is essential to have clear, detailed rules on the
subject, especially as the technology available for use is continually
becoming more sophisticated" (see the Kopp judgment cited above, pp. 542-43,
=A7 72).


57.  The "quality" of the legal provisions relied on in the instant case
must therefore be considered.


58.  The Court points out first of all that Article 1 of the Federal
Council's Decree of 29 April 1958 on the Police Service of the Federal
Public Prosecutor's Office, according to which the federal police "shall
provide an investigation and information service in the interests of the
Confederation's internal and external security", including by means of
"surveillance" measures, contains no indication as to the persons concerned
by such measures, the circumstances in which they may be ordered, the means
to be employed or the procedures to be observed. That rule cannot therefore
be considered to be sufficiently clear and detailed to afford appropriate
protection against interference by the authorities with the applicant's
right to respect for his private life and correspondence.


59.  It considers that the same is true of section 17(3) FCPA, which is
drafted in similar terms."


Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists