Guide on Article 8 of the Convention – Right to respect for private and family life
2. Home and correspondence a. Article 2 (right to life) 7 61. As concerns interferences with the home, the Court has established parallels between the State’s positive obligations under Article 8 of the Convention, Article 1 of Protocol No. 1 and Article 2 of the Convention (Kolyadenko and Others v. Russia, § 216).
b. Article 6 (fair trial)8 62. As concerns intercepted correspondence, the Court has distinguished between the question of whether Article 8 has been violated in respect of investigative measures and the question of possible ramifications of a finding to that effect on rights guaranteed under Article 6 (see, for example, Dragoș Ioan Rusu v. Romania, § 52 and Dumitru Popescu v. Romania (no. 2), § 106, with further references). More generally, López Ribalda and Others v. Spain [GC] addressed the question of whether the use in evidence of information obtained in violation of Article 8 or of domestic law rendered a trial as a whole unfair, contrary to Article 6 (§§ 149-152).
c. Article 10 (freedom of expression) 9 63. Although surveillance or telephone tapping is generally examined under Article 8 alone, such a measure may be so closely linked to an issue falling under Article 10 – for example, if special powers were used to circumvent the protection of a journalistic source – that the Court examines the case under the two Articles concurrently (Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands). In the case cited, the Court found a violation of both Articles. It held that the law had not afforded adequate safeguards in relation to the surveillance of journalists with a view to discovering their sources.
d. Article 13 (right to an effective remedy) 10 64. In a case concerning home searches, the Court found that the mere possibility of disciplinary proceedings against the police officers who had carried out the searches did not constitute an effective remedy for the purposes of the Convention. In the case of interference with the right to respect for the home, a remedy is effective if the applicant has access to a procedure enabling him or her to contest the lawfulness of searches and seizures and obtain redress where appropriate (Posevini v. Bulgaria, § 84). 65. As regards the interception of telephone conversations, in the İrfan Güzel v. Turkey judgment (§§ 94-99), after finding that there had been no violation of Article 8 on account of the tapping of the applicant’s telephone calls in the course of the criminal proceedings against him, the Court held that there had been a violation of Article 13 in conjunction with Article 8 (see also the references to the Roman Zakharov v. Russia [GC] judgment). In the sphere of secret surveillance, where abuses are potentially easy and could have harmful consequences for democratic society as a whole, it is in principle desirable to entrust supervisory control to a judge, judicial oversight offering the best guarantees of independence, impartiality and a proper procedure (Roman Zakharov v. Russia [GC], § 233; İrfan Güzel v. Turkey, § 96). It is advisable to notify the person concerned after the termination of See the Guide on Article 2 (right to life). See the Guide on Article 6 (Fair trial). 9 See the Guide on Article 10 (Freedom of expression). 10 See the Guide on Article 13 (Right to an effective remedy). 7 8
European Court of Human Rights
20/161
Last update: 31.08.2021
