Inhoudsopgave
1. Malone v. The United Kingdom.................................................................2
2. Gaskin v. The United Kingdom................................................................16
3. Peck v. The United Kingdom...................................................................20
4. Y.F. v. Turkey..........................................................................................29
5. S. and Marper v. The United Kingdom....................................................33
6. Uzun v. Germany......................................................................................47
7. HR 24 februari 2017, ECLI:NL:HR:2017:288.........................................56
8. Amann v. Switzerland..............................................................................63
9. Copland v. The United Kingdom.............................................................70
10. Silver and Others v. The United Kingdom.............................................75
11. M.M. v. The United Kingdom................................................................79
12. K.U. v. Finland.......................................................................................86
13. X and Y v. The Netherlands...................................................................92
14. Patrick Breyer.........................................................................................97
15. Wirtschaftsakademie............................................................................101
16. Fashion ID............................................................................................117
17. Rigas Satiksme.....................................................................................130
18. Goedkeuring gedragscode zorgverzekeraars........................................135
19. Catt. v. The United Kingdom...............................................................139
20. Österreichischer Rudfunk and Others..................................................146
21. Geheim cameratoezicht getoetst aan de Wbp en artikel 441b Wetboek
van Strafrecht..............................................................................................153
22. UBER...................................................................................................161
23. Digital Rights Ireland...........................................................................179
24. Tele2 Sverige........................................................................................192
25. Schrems................................................................................................203
26. ANPR...................................................................................................209
27. Leander v. Sweden...............................................................................216
28. Alijda....................................................................................................223
29. Waterproof II........................................................................................226
30. ECLI:NL:RBDHA:2020:865...............................................................230
,31. Toepassing algemene onderzoeksbevoegdheid I..................................243
32. GALOP II Huisbezoek.........................................................................248
33. FSV.......................................................................................................255
34. Stelselmatige observaties bestuursrecht...............................................260
35. López Ostra v. Spain............................................................................266
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,1. Malone v. The United Kingdom
G. "Metering"
56. The process known as "metering" involves the use of a device called a
meter check printer which registers the numbers dialled on a particular
telephone and the time and duration of each call. It is a process which was
designed by the Post Office for its own purposes as the corporation
responsible for the provision of telephone services. Those purposes include
ensuring that the subscriber is correctly charged, investigating complaints of
poor quality service and checking possible abuse of the telephone service.
When "metering" a telephone, the Post Office - now British
Telecommunications (see paragraph 23 above) - makes use only of signals
sent to itself.
In the case of the Post Office, the Crown does not require the keeping of
records of this kind but, if the records are kept, the Post Office may be
compelled to produce them in evidence in civil or criminal cases in the
ordinary way, namely by means of a subpoena duces tecum. In this respect
the position of the Post Office does not differ from that of any other party
holding relevant records as, for instance, a banker. Neither the police nor the
Crown are empowered to direct or compel the production of the Post Office
records otherwise than by the normal means.
However, the Post Office do on occasions make and provide such
records at the request of the police if the information is essential to police
enquiries in relation to serious crime and cannot be obtained from other
sources. This practice has been made public in answer to parliamentary
questions on more than one occasion (see, for example, the statement by the
Home Secretary to Parliament, Hansard, House of Commons, 23 February
1978, cols. 760-761).
H. Possible domestic remedies in respect of the alleged violation of
the Convention
57. Commission, Government and applicant are agreed that, at least in
theory, judicial remedies are available in England and Wales, in both the
civil and the criminal courts, in respect of interceptions of communications
carried out unlawfully. The remedies referred to by the Government were
summarised in the pleadings as follows:
(i) In the event of any interception or disclosure of intercepted material
effected by a Post Office employee "contrary to duty" or "improperly" and
without a warrant of the Secretary of State, a criminal offence would be
committed under the Telegraph Acts 1863 and 1868 and the Post Office
(Protection) Act 1884 (as regards telephone interceptions) and under the
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, Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27
above). On complaint that communications had been unlawfully intercepted,
it would be the duty of the police to investigate the matter and to initiate a
prosecution if satisfied that an offence had been committed. If the police
failed to prosecute, it would be open to the complainant himself to
commence a private prosecution.
(ii) In addition to (i) above, in a case of unlawful interception by a Post
Office employee without a warrant, an individual could obtain an injunction
from the domestic courts to restrain the person or persons concerned and the
Post Office itself from carrying out further unlawful interception of his
communications: such an injunction is available to any person who can
show that a private right or interest has been interfered with by a criminal
act (see, for example, Gouriet v. The Union of Post Office Workers, [1977]
3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All
England Law Reports 795).
(iii) On the same grounds, an action would lie for an injunction to
restrain the divulging or publication of the contents of intercepted
communications by employees of the Post Office, otherwise than under a
warrant of the Secretary of State, or to any person other than the police.
Besides these remedies, unauthorised interference with mail would
normally constitute the tort of trespass to (that is, wrongful interference
with) chattels and so give rise to a civil action for damages.
58. The Government further pointed to the following possible non-judicial
remedies:
(i) In the event that the police were themselves implicated in an
interception carried out without a warrant, a complaint could additionally be
lodged under section 49 of the Police Act 1964, which a chief officer of
police would, by the terms of the Act, be obliged to investigate and, if an
offence appeared to him to have been committed, to refer to the Director of
Public Prosecutions.
(ii) If a complainant were able to establish merely that the police or the
Secretary of State had misappreciated the facts or that there was not an
adequate case for imposing an interception, the individual concerned would
be able to complain directly to the Secretary of State himself or through his
Member of Parliament: if a complainant were to give the Home Secretary
information which suggested that the grounds on which a warrant had been
issued did not in fact fall within the published criteria or were inadequate or
mistaken, the Home Secretary would immediately cause it to be investigated
and, if the complaint were found to be justified, would immediately cancel
the warrant.
(iii) Similarly, if there were non-compliance with any of the relevant
administrative rules of procedure set out in the Birkett report and the White
Paper, a remedy would lie through complaint to the Secretary of State who
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