Guide on Article 8 of the Convention – Right to respect for private and family life
out during an enhanced check, domestic law did not provide adequate safeguards to offer the individual adequate protection against arbitrary interference (§ 62). 226. In Beghal v. the United Kingdom the Court considered a power given to police, immigration officers and designated customs officers under anti-terrorism legislation to stop, examine and search passengers at ports, airports and international rail terminals. No prior authorisation was required for the use of the power, and it could be exercised without suspicion of involvement in terrorism. In assessing whether domestic law sufficiently curtailed the power so as to offer adequate protection against arbitrary interference with the applicant’s right to respect for her private life, the Court had regard to the following factors: the geographic and temporal scope of the powers; the discretion afforded to the authorities in deciding if and when to exercise the powers; any curtailment on the interference occasioned by the exercise of the powers; the possibility of judicially reviewing the exercise of the powers; and any independent oversight of the use of the powers. Although the Court acknowledged the importance of controlling the international movement of terrorists, and accepted that the national authorities enjoyed a wide margin of appreciation in matters relating to national security, it nevertheless held that the power was neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. 227. The Court has also found that police officers’ entry into a home in which applicant was not present and there was little or no risk of disorder or crime was disproportionate to the legitimate aim pursued and was therefore a violation of Article 8 (McLeod v. the United Kingdom, § 58; Funke v. France, § 48). 228. With respect to persons suspected of terrorism-related offences, governments must strike a fair balance between the exercise by the individual of the right guaranteed to him or her under paragraph 1 of Article 8 and the necessity under paragraph 2 for the State to take effective measures for the prevention of terrorist crimes (Murray v. the United Kingdom, §§ 90-91).
9. Home visits, searches and seizures 39 229. In some cases, the Court examines evictions from the perspective of “private” and/or “family” life” and not of the “right to home” (Hirtu and Others v. France, §§ 65-66; Khadija Ismayilova v. Azerbaijan, § 107). 230. The Court can examine searches not only from the perspective of the “right to home” or the “right to family life”, but also from the perspective of the “right to private life” (Vinks and Ribicka v. Latvia, § 92; Yunusova and Yunusov v. Azerbaijan (no. 2) with regard to the inspection of the applicants’ luggage and handbags, § 148). The interference must be justified under paragraph 2 of Article 8 – in other words it must be “in accordance with the law”, pursue one or more of the legitimate aims set out in that paragraph and be “necessary in a democratic society” to achieve that aim (Vinks and Ribicka v. Latvia, §§ 93-104 with further references therein). The Vinks and Ribicka case concerned an early-morning raid at the applicants’ home involving a special anti-terrorist unit against the background of charges of economic crimes. The Member States, when taking measures to prevent crime and protect the rights of others, may well consider it necessary, for the purposes of special and general prevention, to resort to measures such as searches and seizures in order to obtain evidence of certain offences where it is otherwise impossible to identify a person guilty of an offence. Although the involvement of special police units may be considered necessary, in certain cir39
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European Court of Human Rights
57/161
Last update: 31.08.2021
