European Court rules on the use of real-time geolocation
Ben Faiza v France, Application no. 31446/12
On 8 February 2018, the European Court of Human Rights (ECtHR) delivered judgment on whether the real-time geolocation of a vehicle and a court order issued to a mobile telephone operator for call records and cell towers pinged constituted a violation of the right to respect for private life under article 8 of the European Convention on Human Rights (the European Convention).
The applicant, Mr Mohamed Ben Faiza, is a French national suspected of being involved in drug trafficking. As a result, he was placed under the following surveillance measures: (i) on 24 July 2009, a court order was issued to a telephone operator to obtain records of incoming and outgoing calls on four telephone lines and the list of cell towers pinged by the mobile telephones; (ii) on 10 May 2010 , the police obtained oral authorisation from the investigating judge to fasten a tracking device to a vehicle being used by the applicant; and (iii) on 3 June 2010, the investigating judge ordered the installation of a device to receive, fix, transmit and record the conversations of persons using the vehicle, and for a geolocation device to be fixed onto the vehicle for one month.
On the basis of the data obtained from these measures, the applicant and others were arrested and charged with various drug-related charges, including possessing, transporting and importing drugs.
Before the Fifth Section of the ECtHR, the applicant argued that the court order issued to the telephone operator and the installation of a geolocation device on his vehicle constituted an interference with his right to respect for his private life. The ECtHR dismissed the applicant’s claim against the court order issued to the mobile telephone operator on 24 July 2009, but upheld his claim against the real-time geolocation decision of 3 June 2010. In this regard, the ECtHR held as follows:
- With regard to the court order issued to the mobile telephone operator on 24 July 2009: The ECtHR accepted that this order constituted an interference with the applicant’s private life. However, the ECtHR found this measure to be in accordance with article 77 of the French Code of Criminal Procedure, as it authorised and governed such orders and contained safeguards against arbitrariness (namely, that such orders had to be authorised beforehand by a prosecutor; that such orders were subject to judicial review; and that the information obtained could be excluded as evidence in the event of any illegality). The ECtHR further held that the order had been to pursue a legitimate aim of preventing disorder or crime or public health, and had been necessary for the purpose of breaking up a drug-trafficking operation. Accordingly, the ECtHR held that the court order issued to the mobile telephone operator did not constitute a violation of article 8 of the European Convention.
- With regard to the real-time geolocation decision of 3 June 2010: The ECtHR noted that the GPS geolocation device had enabled the authorities to track the applicant’s movements in real time. This measure, coupled with the installation of another device to receive and record the conversations of the vehicle’s occupants, subjected the applicant to particularly strict surveillance. In considering the provisions of article 81 of the French Code of Criminal Procedure, the ECtHR observed that the law was required to satisfy the criterion of foreseeability and the requirement of sufficient safeguards against the risk of abuse inherent in any covert surveillance system. However, in the present case, the ECtHR held that at the material time the French law did not indicate with sufficient clarity how and to what extent the authorities were entitled to use their discretionary power. Accordingly, the ECtHR held that there had been a violation of article 8 of the European Convention.
The full judgment (in French) is accessible here.
The press release issued by the ECtHR (in English) is accessible here.
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