Mervinskiy 497

Page 138

Guide on Article 8 of the Convention – Right to respect for private and family life

veillance has ceased cannot by itself constitute a violation, it is nevertheless desirable to inform them after the termination of the measures “as soon as notification can be carried out without jeopardising the purpose of the restriction” (Roman Zakharov v. Russia [GC], §§ 287-290; Cevat Özel v. Turkey, §§ 34-37). The question whether it is necessary to notify an individual that he or she has been subjected to interception measures is inextricably linked to the effectiveness of domestic remedies (Roman Zakharov v. Russia [GC], § 286). 633. With regard to secret anti-terrorist surveillance operations, adequate and effective guarantees against abuses of the State’s strategic monitoring powers should exist (Weber and Saravia v. Germany with further references therein): The Court accepts that it is a natural consequence of the forms taken by presentday terrorism that governments resort to cuttingedge technologies, including mass surveillance of communications, in order to preempt impending incidents. Nevertheless, legislation governing such operations must provide the necessary safeguards against abuse regarding the ordering and implementation of surveillance measures and any potential redress (Szabó and Vissy v. Hungary, §§ 64, 68 and 78-81). Although the Court accepts that there may be situations of extreme urgency in which the requirement of prior judicial authorisation would entail a risk of wasting precious time, in such cases any measures authorised in advance by a nonjudicial authority must be subject to an ex post facto judicial review (§ 81). 634. The case of Kennedy v. the United Kingdom concerned a former prisoner campaigning against miscarriages of justice and claiming to be the victim of surveillance measures. The Court pointed out that the power to order secret surveillance of citizens was not acceptable under Article 8 unless there were adequate and effective guarantees against abuse. 635. In the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, a nonprofit association and a lawyer who represented applicants in proceedings before the Strasbourg Court alleged that they could be subjected to surveillance measures at any point in time without any notification. The Court observed that the relevant domestic legislation did not afford sufficient guarantees against the risk of abuse inherent in any system of secret surveillance and that the interference with the applicants’ Article 8 rights was therefore not “in accordance with the law”. 636. The case of Association “21 December 1989” and Others v. Romania concerned an association protecting the interests of participants in and victims of antigovernment demonstrations. The Court found a violation of Article 8 (§§ 171-175; contrast Kennedy v. the United Kingdom, § 169, no violation).

2. Bulk interception regimes 637. In the cases of Centrum för rättvisa v. Sweden [GC] (§§ 254-278) and Big Brother Watch and Others v. the United Kingdom [GC] (§§ 340-364), the Court considered the safeguards necessary in bulk interception regimes (sometimes called “signals intelligence”) as compared to targeted interception regimes. Unlike most targeted interception, the purpose of which is generally to investigate a specific target or an identifiable criminal offence, bulk interception regimes are in generally used for foreign intelligence gathering and the identification of new threats from both known and unknown actors. This being the case, the requirement to define clearly in domestic law the categories of people liable to have their communications intercepted and the nature of the offences which might give rise to such an order is not readily applicable to a bulk interception regime: nor is the requirement of “reasonable suspicion”. Nevertheless, it is imperative that the domestic law should set out with sufficient clarity and detail the grounds upon which bulk interception might be authorised and the circumstances in which an individual’s communications might be intercepted. Furthermore, in the context of bulk interception, the importance of supervision and review is amplified, because of the inherent risk of abuse and the legitimate need for secrecy. Article 8 applies at each stage of the bulk interception process, and the degree of interference with privacy rights increased

European Court of Human Rights

138/161

Last update: 31.08.2021


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Articles inside

List of cited cases

50min
pages 140-161

D. Correspondence of private individuals, professionals and companies

2min
page 130

6. Correspondence with the Court

5min
pages 123-124

5. Correspondence between prisoners and their lawyer

3min
page 122

4. Telephone conversations

3min
page 121

E. Surveillance of telecommunications in a criminal context

9min
pages 131-133

2. Bulk interception regimes

4min
pages 138-139

C. Lawyers’ correspondence

10min
pages 127-129

2. Positive obligations

2min
page 116

3. Pollutant and potentially dangerous activities

2min
page 114

2. Noise disturbance, problems with neighbours and other nuisances

3min
page 113

E. Journalists’ homes

3min
page 110

C. Commercial premises

2min
page 108

D. Law firms

3min
page 109

5. Home visits, searches and seizures

7min
pages 106-107

2. Tenants

3min
page 103

1. Property owners

3min
page 102

2. Examples of “interference”

6min
pages 99-100

6. Material interests

2min
page 96

7. Testimonial privilege

2min
page 97

5. Immigration and expulsion

16min
pages 91-95

3. Children

39min
pages 77-87

4. Other family relationships

10min
pages 88-90

2. Parents

3min
page 76

B. Procedural obligation

3min
page 72

9. Statelessness, citizenship and residence

3min
page 68

7. Gender identity

7min
pages 64-65

3. Legal parent-child relationship

3min
page 62

2. Right to discover one’s origins

3min
page 61

10. Deportation and expulsion decisions

3min
page 69

11. Marital and parental status

2min
page 70

8. Right to ethnic identity

6min
pages 66-67

11. Privacy during detention and imprisonment

3min
page 59

9. Home visits, searches and seizures

3min
page 57

10. Lawyer-client relationship

3min
page 58

8. Stop and search police powers

3min
page 56

6. File or data gathering by security services or other organs of the State

6min
pages 53-54

5. Information about one’s health

3min
page 52

2. Protection of individual reputation; defamation

14min
pages 47-50

7. Police surveillance

3min
page 55

1. Right to one’s image and photographs; the publishing of photos, images, and articles

7min
pages 45-46

9. Environmental issues

3min
page 42

C. Privacy

3min
page 44

10. Sexual orientation and sexual life

3min
page 43

5. Health care and treatment

6min
pages 37-38

4. Mental illness/mesure of protection

7min
pages 35-36

8. Issues concerning burial and deceased persons

7min
pages 40-41

3. Forced medical treatment and compulsory medical procedures

3min
page 34

1. Private and family life

19min
pages 14-19

C. In the case of a negative obligation, was the interference conducted “in accordance with the law”?

7min
pages 10-11

2. Reproductive rights

6min
pages 32-33

B. Should the case be assessed from the perspective of a negative or positive obligation?

7min
pages 8-9

Note to readers

2min
page 6

2. Home and correspondence

8min
pages 20-22

2. Professional and business activities

13min
pages 26-29

D. Does the interference further a legitimate aim?

3min
page 12
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