A Contextual Analysis of the European Court of Human Rights’ Secret Surveillance Jurisprudence

This thesis examines a selection of key cases up to the end of 2023 in which the European Court of Human Rights has addressed the challenge of state-sponsored secret communications surveillance. In view of the commonly levelled criticism that the Strasbourg Court has, for some reason or other, “missed an opportunity” in its varied jurisprudence, the principal aim of this thesis is to engage in a contextual analysis of the Court’s approach to secret surveillance with a view to challenging this supposition and determining whether the Court has kept pace with the evolution of surveillance technologies. To achieve this, this study pays close attention to the challenges arising from the developments in surveillance technologies at the time of adjudication, the prevailing geopolitical climate, and the Court’s own institutional evolution, including the dynamics between the Court and the High Contracting Parties and the Court’s own institutional competencies. With due consideration of the various key principles upon which the Convention system is predicated, especially the principle of subsidiarity, and with recourse to extrajudicial materials, this thesis argues that the Court has consistently operated as a driving force for increased action at the national level through its emphasis on legality and the delineation of procedural parameters via the formulation of minimum standards. In doing so, this thesis further argues that the Court’s approach facilitates increased national engagement with the substantive questions surrounding the practice of secret surveillance within democratic societies. In view of the nature of secret surveillance, the magnitude of societal and technological change brought on by the advent of the digital era, and the practical limitations of the Court as a judicial body operating in accordance with good faith, this thesis concludes that the Strasbourg Court has kept pace with the evolution of secret surveillance technologies without engaging in Convention overreach.