SECOND SECTION

DECISION

Application no. 55630/15 UNSEEN EHF. against Iceland

The European Court of Human Rights (Second Section), sitting on 20 March 2018 as a Chamber composed of:

Paul Lemmens , President, Robert Spano , Ledi Bianku , Nebojša Vučinić , Valeriu Griţco , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges, and Stanley Naismith, Section Registrar ,

Having regard to the above application lodged on 5 November 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Unseen ehf ., is an Icelandic limited liability company based in Reykjavik. It was represented before the Court by Mr Hafþór Sævarsson , a member of the applicant company ’ s board of directors.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant company, may be summarised as follows.

3. The applicant is a limited liability company based in Iceland. It provides its customers with encrypted email, web chat and video conference services. Its main objective is to provide its customers with services free from illegal invasion of privacy or interception by governmental or corporate entities.

4. On 17 April 2015, the Reykjavík Metropolitan Police ( Lögreglan á höfuðborgarsvæðinu ) lodged a request before the District Court of Reykjavík ( Héraðsdómur Reykjavíkur ) requiring that the applicant company be ordered to provide the police with all the data in its possession, from 1 October 2014 to 17 April 2015, concerning three specific email accounts hosted by the applicant company on its website. The police also requested that the court render its decision in the absence of the applicant company and without its knowledge, pursuant to Article 104(1) of the Act No. 88/2008 on Criminal Procedure.

5. By a decision of the same date, the District Court granted the request and held the hearing in the absence of the applicant company and without its knowledge, stating that it was “in the interest of the investigation” by the police. Furthermore, the District Court ordered the applicant company to provide the police with the requested data. On 27 April 2015, the police called the chairman of the board of directors of the applicant company and informed him of the District Court ’ s decision.

6. The applicant company appealed to the Supreme Court against the District Court ’ s decision. In its submissions to the Supreme Court, the applicant company maintained, firstly, that the District Court had not divulged a legal basis for its decision to order the applicant company to provide the requested data. Secondly, the applicant company stated that the District Court had most likely applied Chapter XI of the Act on Criminal Procedure No. 88/2008 (hereinafter “the Act on Criminal Procedure”) which included the procedure by which telecommunications companies could be ordered to provide information on telephone calls or other communications to or from a specific telephone, computer or other types of device. The applicant company argued that these rules did not apply, as it could not be considered a telecommunications company. Lastly, the applicant company submitted that the District Court ’ s decision to hold the hearing in its absence and without its knowledge had not been justified under the conditions laid down in Article 104(1) of the Act on Criminal Procedure.

7. By judgment of 29 April 2015, the Supreme Court ( Hæstiréttur Íslands ) confirmed the District Court ’ s decision. In its judgment the Supreme Court referred to Chapter XI of the Act on Criminal Procedure concerning telecommunications companies and stated that the applicant company provided its customers with telecommunications services as defined in the Act No. 81/2003 on Electronic Telecommunications and was therefore a telecommunications company for the purpose of Act No. 88/2008 on Criminal Procedure.

B. Relevant domestic law

8. The relevant sections of the Act on Criminal Procedure No. 88/2008, at the time, read as follows:

Section 80

“ Under the conditions stipulated in Section 83(1) and Section 84(1) a telecommunications company can be required, in the interests of a police investigation, to provide information on telephone calls or other communications to or from a specific telephone, computer or other types of telecommunication devices.”

Section 83

“ The condition for taking the investigative actions set out in Sections 80-82 is that it is reasonable to assume that important information can be obtained which could be critical for the police investigation.

In addition to the condition in paragraph 1, another condition for taking the investigative actions under Sections 80-82 is that the investigation concerns a criminal act that can carry 8 years ’ imprisonment according to law or that important public or private interests so require.”

Section 84

“A court decision is required for taking the investigative actions stipulated in Sections 80-82. However, information pursuant to Section 80 should be provided without a court decision if the person who possesses or owns a telephone, computer or other types of telecommunication device has given unequivocal permission.

A court decision shall stipulate to which telephone or telecommunication device it applies or who is the owner or person who possesses the telecommunication device, pursuant to Sections 80 and 81 , ...

...

The employees of a telecommunications company are obliged to assist the police with the execution of the actions listed in Sections 80 and 81 as necessary.”

Section 102

“In accordance with the provisions of this Chapter, a request may be submitted to a district court for taking certain actions during an investigative stage which will need the involvement of a judge according to other provisions of this Act, including a request that a defendant, a victim or another witness must give a statement under Section 59.

In addition to what is stated in the first paragraph, a dispute which concerns the lawfulness of any investigative action made by the police or the prosecution may be submitted to a district court. The same applies to any disputes about the rights of the defendant, his/her defence counsel or a lawyer, including their requests concerning certain investigative actions, or the rights of a victim, his/her representative or legal counsel.”

Section 104

“If a request for an investigative action pursuant to Section 102(1) is made and it is demanded that a hearing be held in the absence of the defendant or the party which the action concerns, the judge shall decide whether to approve the demand. In general it should not be approved unless a judge considers that it has been sufficiently established that prior knowledge of the investigative action by the defendant or the concerned party could harm the investigation. ...”

9. The relevant Section of Act No. 81/2008 on Electronic Communication reads as follows:

Article 3

“For the purpose of this Act the following definitions shall apply: ... 15. Electronic communications: any type of transmission and receipt of symbols, signals, writing, images and sounds, or any sort of communication on lines, by radio or other electromagnetic systems;

...”

COMPLAINT

10. The applicant company complained under Article 6 of the Convention that its right to a fair trial had been violated by the domestic courts ’ decisions. In particular the applicant company maintained, firstly, that its right of access to a court, to an adversarial hearing and equality of arms was violated because it was excluded from attending the hearing before the District Court. Secondly, the applicant company argued that its right to a reasoned judgment had been violated because the District Court ’ s decision to order it to provide the requested data lacked legal basis, and that the District Court ’ s decision to exclude the applicant company from attending the hearing was insufficiently reasoned. Lastly, the applicant company stated that obliging it to provide the police with the requested information without due process had interfered with its economic activities.

THE LAW

11. Article 35 § 1 of the Convention provides:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law ...”

12. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by the Contracting States of their obligations under the Convention. It should not take on the role of the Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, among other authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § § 69-70 , 25 March 2014 ).

13. While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance, and in compliance with the formal requirements and time ‑ limits laid down in domestic law (see, among other authorities, Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-III and Nicklinson and Lamb v. the United Kingdom ( dec. ), nos. 2478/15 and 1787/15 , § 89, 23 June 2015).

14. The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of a violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court. In so far as there exists, at national level, a remedy enabling the national courts to address, at least in substance, the argument of a violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court has not been put, either explicitly or in substance, to the national courts when it could have been raised in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it. It is not sufficient that the applicant may have exercised, unsuccessfully, another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument (see among others, Azinas , cited above, § 38 , and Nicklinson and Lamb, cited above, § 90).

16. Before the Supreme Court, the applicant company mainly presented two arguments. Firstly, it argued that the District Court ’ s decision to order it to provide the police with the requested data lacked legal basis as the court did not refer to particular provisions of the Act on Criminal Procedure. The second argument concerned the interpretation of domestic law by the national courts, in particular the interpretation of Article 104 and Chapter XI of the Act on Criminal Procedure, concerning telecommunications companies.

17. Before this Court, the applicant has stated that the Supreme Court did not address the above-mentioned deficiencies on appeal.

18. In the Court ’ s view, it is clear from the applicant company ’ s written submissions before the Supreme Court that it did not rely on its Article 6 rights explicitly, nor did it frame its complaints in such a way that it could be considered to have sufficiently invoked its rights under Article 6 of the Convention, which it raises now before the Court, in substance.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 12 April 2018 .

             Stanley Naismith Paul Lemmens Registrar President