LISA Groningen

To be personally affected by legislation or a policy before an individual can take action in front of a judicial body seems reasonable, yet we can ask ourselves; does this hamper our access to justice? 

The victim status principle plays a large role in the admissibility of cases in front of the European Court of Human Rights (ECtHR). This principle is codified in Article 34 of the European Convention on Human Rights (ECHR) where it states that all individual applicants must be a victim of a violation by a High Contracting Party. 1  

“The Court may receive applications from any person, nongovernmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” (Article 34 ECHR)2

The victim status principle ties closely to the notions of in abstracto and actio popularis. Most states no longer recognize cases that do not fulfill these three notions, which are often interconnected. Recently, these principles have, once again, come to the forefront of jurisprudence where violations of privacy are being handled. This depicts how the development of technology is calling for a dynamic interpretation, or re-interpretation, of the law by judges. This article will look at two instances where the idea behind the victim status has shifted to allow for more leniency, permitting cases of actio popularis, both on a European level and within the Netherlands when it comes to infringements of privacy. 

For the purposes of this article the definition of some key terms have to be expanded on. 

Firstly, victim status refers to the applicant needing to be personally affected by the (alleged) violation. Article 34 ECHR concerns not just the direct victim or victims of the alleged violation, but also any indirect victims to whom the violation would cause harm or who would have a valid and personal interest in seeing it brought to an end (Vallianatos and Others v. Greece [GC], § 47). Therefore, it can be said that there is a broad interpretation of the victim status as it includes both direct and indirect as well as potential victims who have a valid and personal interest.3

Secondly, in abstracto refers to the reality of the violation. In abstracto references the abstractness, or theoretical violation lacking evidence not based on specific or real facts. The Court has come to frequently deny the admissibility of cases in abstracto, if this is still a reality will be looked into later on.4 

Lastly, actio popularis, which overlaps closely with in abstracto, refers to the right of an individual or civil society interest group to take legal action in the name of public interest without per se holding victim status. 5 

These notions all tie into one another closely, as can be seen in the cases to be expanded on. The victim status is one which is often delved into and referred to by states to make a complaint non-admissible in front of the Court, both on a national level and most certainly on a European level. 

Actio Popularis on a European level

When discussing actio popularis and in abstracto proceedings in the context of European law and the ECtHR, the conversation seems to be heading into a new direction. The Court has been consistent in their case law by constantly disallowing cases of actio popularis. However, this is no longer fully accurate. This common practice has slowly begun to shift where legislation permitting secret surveillance is concerned. Before delving into the recent developments of actio popularis, the importance of the victim status within EU law has to be addressed. Victim status is most relevant in EU law as it deals with citizens against their state, and due to the nature of the relationship of EU law and national law if there is no real or personal claim with substantiated evidence this may quickly become a case of the ECtHR exceeding their conferred powers.6 

Roman Zakharov v Russia, a landmark case, concerned proceedings against three mobile-network operators due to the installation of technology which allowed the Federal Security Service (FSB) to intercept telephone communications without prior judicial authorisation.7 This was summarized as secret surveillance measures, as these interception technologies were not previously divulged to the individuals using the mobile-networks. This case is also very relevant in the context of victim status and in abstracto proceedings, and how these tie to actio popularis proceedings. This case, as with the SyRI case, revolves around Article 8 ECHR, the right to privacy. Paragraph 153 of the judgement encapsulates the Russian Government’s argument concerning the admissibility of Mr. Zakharov’s claim is based on the nature of actio popularis: 

“The Government further submitted that Article 34 could not be used to lodge an application in the nature of an actio popularis; nor could it form the basis of a claim made in abstracto that a law contravened the Convention(…). They argued that the approach to victim status established in the cases of Klass and Others v. Germany (…) – according to which an individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him– could not be interpreted so broadly as to encompass every person in the respondent State who feared that the security services might have compiled information about him. An applicant was required to demonstrate that there was a “reasonable likelihood” that the security services had compiled and retained information concerning his private life.”8

The Court recognized their general unwillingness to assess cases of actio popularis and how it is not their role to review relevant domestic legislation in paragraph 164. Then in the subsequent paragraph (165) the Court responds to the Government’s claim (made in paragraph 153) by drawing a parallel to the nature of the interference in this case, which was secret surveillance, the severity of the interference, and lack of national remedies. It was then ruled that “(An) individual might, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him.” according to Klass and others v Germany.9

The Court outlines two criteria for such cases to be admissible in the future: 1) the individual must possibly be affected by the scope of the legislation permitting secret surveillance e.g. either because they belong to a group of persons targeted by the contested legislation or because the legislation directly affects all users of communication services and 2) whether there are domestic remedies available, for which the level of scrutiny by the Court has to be adjusted based on the effectiveness of such remedies.

Through this case it was, for the first time, made clear that for instances of secret surveillance the Court has become more lenient (less rigid, mechanical, and inflexible) in their interpretations of the victim status, in abstracto and actio popularis to allow for better protection under Art 8 ECHR. 

Actio Popularis on a Dutch level 

To put it simply, there is no actio popularis in The Netherlands. Nevertheless, there has been recent case law which concerns actio popularis and the possibility of its existence in cases concerning breaches of privacy and the greater public interest. 

The case which was both a landmark judgement for the world of technology law and actio popularis is the SyRI (Systeem Risico Indicatie) legislation. This risk factor assessment AI was meant to detect various forms of fraud mainly pertaining to social benefits based on data that was being collected without the knowledge of the data subjects.10 For example, the system would collect information about an individual’s water or gas consumption to determine whether they were lying in their application for social benefits, important to note is that there have been claims made to the discriminatory nature of the system. In the case of SyRI there were multiple applicants, both civil society interest groups such as Privacy First and the Dutch Lawyers Community on Human Rights (NJCM) as well as individual claimants who were only referred to as [claimant sub 6] and [claimant sub 7] against the Dutch Government. The goal of the claimants was to halt the use of such an AI system as the belief was the legislation was unlawful and violated human rights. 

A fact of interest is that the claims of the two individual claimants were deemed inadmissible due their inability to show the connection between their private lives and the data which was processed under SyRI legislation. This ties to the victim status, since the personal interest could not be concretely presented under Book 3 Section 303 Dutch Civil Code (DCC) the Court deemed their admission inadmissible and not sufficient to start an abstract review (in abstracto) on the legislation’s legality concerning Article 8 ECHR. This brings the question of how the claims of two individuals were denied but the claims of civil society interest groups which can not have victim status in this instance were admissible. 

The answer lies in Book 3 Section 305a DCC, which translates to: “A foundation or association with full legal capacity that, according to its articles of association, has the objection to protect specific interests, may bring to court a legal claim that intends to protect similar interests of other persons.”11 When examining this Article we can see that the Dutch legislators have, in theory, left a ‘backdoor’ in the realm of actio popularis. The possibility is given to legal persons to facilitate and stand up for individuals against the State. The importance of this is that organizations such as NJCM or Privacy First can protect the rights of individuals and maintain oversight of the government’s actions. Worth noting is that the general right to actio popularis was removed from legislation in 2005. Since the 1st of January the ‘backdoor’ article has been heavily amended, the main amendments included a quantitative stance on the “sufficiently representative” nature a foundation holds before they can initiate proceedings in actio popularis in paragraph 2 of the article. This was balanced out with paragraph 6 of article 305 where the Court holds a margin of appreciation in determining the “representativeness requirement” if the foundation is initiating a legal action on the base of an idealistic purpose. 

The Court found a violation of Article 8 ECHR which could not be justified under paragraph 2 of the same article on the use and application of the SyRI system. When reading the Court’s argumentation for their decision it is made clear that the reason they have allowed for an act of actio popularis is due to the nature of the legislation, its breach of privacy as a human right and the idealistic purpose of the legal action initiated by the various foundations. 

To summarize, although actio popularis is not prevalent in The Netherlands, and the victim status is seemingly very important, exceptions can be made. The exception in the SyRI case pertains to civil society interest groups who have as their founding principles the protection of privacy and no excessive, or misuse of data collecting and processing. This is important especially considering the nature of privacy and how rapidly technology develops as it allows for more sufficient protection of what is in this instance a human right. Therefore, actio popularis plays an important role in the realm of privacy protection which was also reiterated in part through the Court’s judgement. 

Conclusion

What has been made clear after examining cases concerning actio popularis proceedings are that both on a national (Dutch) and European level the Courts have started to apply a less rigid interpretation to the victim status and in abstracto proceedings to allow for more adequate protection of the right to privacy under Art 8 ECHR. To answer the initial question, the victim status, lack of in abstracto and actio popularis would technically hamper the average individual’s protection of privacy, but due to the Courts’ lenient and dynamic interpretation of the law this is playing a smaller role in the hampering of our access to justice. 

Namens de redactiecommissie, 

Elene Amiranashvili 

1. Slavica Chubrikj and Neda Chalovska-Dimovska, ‘Use Of Action Popularised In Cases Of Discrimination’ (Helsinki Committee for Human Rights 2016).
2. European Convention on Human Rights (ECHR) art 34.
3. European Court of Human Rights, ‘Practical Guide On Admissibility Criteria’ (2021).
4. Bart van der Sloot, ‘The Quality Of Law: How The European Court Of Human Rights Gradually Became A European Constitutional Court For Privacy Cases’ (2020) 11 Journal of Intellectual Property, Information Technology and E-commerce Law.
5. Andrea Gattini, ‘Actio Popularis’, Max Planck Encyclopedias of International Law (Oxford Public International Law 2021).
6. European Court of Human Rights, ‘Practical Guide On Admissibility Criteria’ (2021).
7. Case T-47143/06 Roman Zakharov v Russia [2015] ECR VIII-205, para 10.
8. Case T-47143/06 Roman Zakharov v Russia [2015] ECR VIII-205, para 153.
9. Bart van der Sloot, ‘The Quality Of Law: How The European Court Of Human Rights Gradually Became A European Constitutional Court For Privacy Cases’ (2020) 11 Journal of Intellectual Property, Information Technology and E-commerce Law.
10. Rb. Den Haag 05-02-2020, ECLI:NL:RBDHA:2020:865.
11. Translation taken from:  http://www.dutchcivillaw.com/legislation/dcctitle331111.htm