Guide on Article 8 of the Convention – Right to respect for private and family life
it was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention (see also Azer Ahmadov v. Azerbaijan, §§ 63-74). 221. The Court has found violations of Article 8 where applicants’ telephone conversations in connection with prosecution for criminal offences were intercepted, “metered”, or listened to in violation of the law (Malone v. the United Kingdom; Khan v. the United Kingdom). The phrase “in accordance with the law” not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law (Halford v. the United Kingdom, § 49). In the context of covert surveillance by public authorities domestic law must provide protection against arbitrary interference with an individual’s right under Article 8 (Khan v. the United Kingdom, §§ 2628). Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures (ibid.). Where there exists no statutory system to regulate the use of covert listening devices, and guidelines concerning them are neither legally binding nor directly publicly accessible, the interference is not “in accordance with the law” as required by Article 8 § 2 of the Convention, and is therefore a violation of Article 8 (ibid., §§ 27-28). 222. The recording of private (telephone) conversations by a conversation partner and the private use of such recordings does not per se offend against Article 8 if this is done by private means. However, this must be distinguished from the covert monitoring and recording of communications by a private person in the context of and for the benefit of an official inquiry – criminal or otherwise – and with the connivance and technical assistance of public investigation authorities (Van Vondel v. the Netherlands, § 49). The disclosure of the content of certain conversations to the media obtained through telephone tapping could constitute a violation of Article 8 depending on the circumstances of the case (Drakšas v. Lithuania, § 62). 223. The Court considers the surveillance of legal consultations taking place in a police station to be analogous to the interception of a telephone call between a lawyer and client, given the need to ensure an enhanced degree of protection for that relationship and in particular for the confidentiality of the exchanges which characterise it (R.E. v. the United Kingdom, § 131).
8. Stop and search police powers 38 224. The Court has held that there is a zone of interaction between a person with others, even in a public context, which may fall within the scope of “private life” (Gillan and Quinton v. the United Kingdom, § 61 concerning the power to stop and search individuals). For instance, the use of the coercive powers conferred by the legislation requiring an individual to submit, anywhere and at any time, to an identity check and a detailed search of his person, his clothing and his personal belongings amounts to an “interference” with the right to respect for private life (Vig v. Hungary, § 49 as regards enhanced police checks). 225. In these cases, the measures complained of were not “in accordance with the law” within the meaning of Article 8. In Gillan and Quinton v. the United Kingdom, the Court found that the stopping and searching of a person in a public place without reasonable suspicion of wrongdoing was a violation of Article 8 as the powers were not sufficiently circumscribed and contained inadequate legal safeguards to be in accordance with the law (§ 87). In Vig v. Hungary, in the absence of any real restriction or review of either the authorisation, of an enhanced check or the police measures carried 38
See also the Guide on Terrorism.
European Court of Human Rights
56/161
Last update: 31.08.2021
