Guide on Article 8 of the Convention – Right to respect for private and family life
215. The Court also found that consultation of a lawyer’s bank statements amounted to an interference with her right to respect for professional confidentiality, which fell within the scope of private life (Brito Ferrinho Bexiga Villa-Nova v. Portugal, § 59).
7. Police surveillance 37 216. The Court has held that the GPS surveillance of a suspected terrorist and the processing and use of the data thus obtained did not violate Article 8 (Uzun v. Germany, § 81). 217. However, the Court found a violation of Article 8 where police registered an individual’s name in a secret surveillance security database and tracked his movements on account of his membership of a human rights organisation (Shimovolos v. Russia, § 66, the database in which the applicant’s name had been registered had been created on the basis of a ministerial order, which had not been published and was not accessible to the public. Therefore, the public could not know why individuals were registered in it, what type of information was included and for how long, how it was stored and used or who had control over it). 218. The Court has established that the surveillance of communications and telephone conversations (including calls made from business premises, as well as from the home) is covered by the notion of private life and correspondence under Article 8 (Halford v. the United Kingdom, § 44; Malone v. the United Kingdom, § 64; Weber and Saravia v. Germany (dec.), §§ 76-79). This does not necessarily extend to the use of undercover agents (Lüdi v. Switzerland, § 40). 219. Tapping and other forms of interception of telephone conversations represent a serious interference with private life and correspondence (see, for instance Dragojević v. Croatia, §§ 94-98) and must accordingly be based on a law that is precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (Kruslin v. France, § 33). When balancing the respondent State’s interest in protecting its national security through secret surveillance measures against the seriousness of the interference with an applicant’s right to respect for his or her private life, the national authorities enjoy a certain margin of appreciation in choosing the means for achieving the legitimate aim of protecting national security. However, there must be adequate and effective safeguards against abuse. The Court thus takes into account the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering them, the authorities competent to authorise, carry out and supervise them, and the kind of remedy provided by the national law (Roman Zakharov v. Russia [GC], § 232; İrfan Güzel v. Turkey, § 85). 220. In Hambardzumyan v. Armenia (§§ 63-68), the warrant authorising surveillance did not state the applicant’s name as the person in respect of whom the police were permitted to carry out audio and video recording. In addition, the police had carried out surveillance and interception of telephone communications even though the warrant did not specify those measures. The Court held that the judicial authorisation serving as the basis of secret surveillance could not be drafted in such vague terms as to leave room for speculation and assumptions with regard to its content and, most importantly, as to the identity of the person to whom the measure was to be applied. Since the secret surveillance in this case had not been the subject of proper judicial supervision, the Court ruled
This chapter should be read in conjunction with Surveillance of telecommunications in a criminal context and Special secret surveillance of citizens/organisations, and the Guide on Data protection.
37
European Court of Human Rights
55/161
Last update: 31.08.2021
