Guide on Article 8 of the Convention – Right to respect for private and family life
5. Home visits, searches and seizures 60 459. In order to secure physical evidence on certain offences, the domestic authorities may consider it necessary to implement measures which entail entering a private home (Dragan Petrović v. Serbia, § 74). The actions of the police when entering homes must be “lawful” (Bostan v. the Republic of Moldova, §§ 21-30) and proportionate to the aim pursued (McLeod v. the United Kingdom, §§ 53-57, in which a violation was found; for an example of a case in which no violation was found, see Dragan Petrović v. Serbia, §§ 75-77), as must any action taken inside the individual home (Vasylchuk v. Ukraine, § 83, concerning the ransacking of private premises). 460. The judgment in the case of National Federation of Sportspersons’ Associations and Unions (FNASS) and Others v. France concerned the obligation imposed on high-level athletes falling within a “target group” to give advance notification of their whereabouts so that unannounced anti-doping tests could be carried out. The Court emphasised that home visits for the purposes of such testing were very different from those carried out under court supervision, which were geared to investigating offences or seizing items of property. Such searches, by definition, struck at the heart of respect for the home and could not be treated as equivalent to the visits to the athletes’ homes (§ 186). The Court considered that reducing or cancelling the obligations of which the applicant had complained could increase the dangers of doping to their health and to that of the whole sporting community, and would run counter to the European and international consensus on the need to carry out unannounced tests (§ 190). 461. Citizens must be protected from the risk of undue police intrusions into their homes. The Court found a violation of Article 8 where members of a special intervention unit wearing balaclavas and armed with machine guns had entered a private home at daybreak in order to serve charges on the applicant and escort him to the police station. The Court pointed out that that safeguards should be in place in order to avoid any possible abuse and protect human dignity in such circumstances (Kučera v. Slovakia, §§ 119 and 122; see also Rachwalski and Ferenc v. Poland, § 73). Those safeguards might even include requiring the State to conduct an effective investigation if that is the only legal means of shedding light on allegations of unlawful searches of property (H.M. v. Turkey, §§ 2627 and 29: violation of the procedural limb of Article 8 owing to the inadequacy of the investigation; regarding the importance of such procedural protection, see Vasylchuk v. Ukraine, § 84). 462. Measures involving entering private homes must be “in accordance with the law”, which entails compliance with legal procedure (L.M. v. Italy, §§ 29 and 31) and with the existing safeguards (Panteleyenko v. Ukraine, §§ 50-51; Kilyen v. Romania, § 34), must pursue one of the legitimate aims listed in Article 8 § 2 (Smirnov v. Russia, § 40), and must be “necessary in a democratic society” to achieve that aim (Camenzind v. Switzerland, § 47). 463. The following are examples of measures which pursue legitimate aims: action by the Competition Authority to protect economic competition (DELTA PEKÁRNY a.s. v. the Czech Republic, § 81); suppression of tax evasion (Keslassy v. France (dec.), and K.S. and M.S. v. Germany, § 48); seeking circumstantial and material evidence in criminal cases, for example involving forgery, breach of trust and the issuing of uncovered cheques (Van Rossem v. Belgium, § 40), murder (Dragan Petrović v. Serbia, § 74), drug trafficking (Işıldak v. Turkey, § 50) and illegal trade in medicines (Wieser and Bicos Beteiligungen GmbH v. Austria, § 55); environmental protection and prevention of nuisance (Halabi v. France, §§ 60-61); and protecting health and the “rights and freedoms of others” in the 60
See also the Guide on Data protection.
European Court of Human Rights
106/161
Last update: 31.08.2021
