Privacy

Question 1

Right to privacy ECHR

Answer 1

1. Was there an interference with privacy?
   - Expectation of privacy for a reasonable person
   - Include business premises
2. Performed by state authorities
3. Necessary in a democratic society:
   - Proportionality (severity, manner and circumstances, content, scope, nature of premises, safeguards, repercussions on victim…) = ‘Pressing social need’
   - Subsidiarity
4. Lawfulness:
   - Double lawfulness test = a) Legal basis + Sufficient quality (precise, sufficient safeguards, accessible, foreseeable consequences, adequate and effective remedies) and b) Lawfully executed
5. Legitimate aim

Question 2

Interception of telecommunications

Answer 2

Very serious interference (Uzun v. Germany)

Must have a national legal basis

• Category of persons
• Nature of the offence
• Duration
• Procedure
• Record/report keeping
• Destruction
• Supervision

Question 3

Surveillance GR

Answer 3

In private premises - Not allowed

In public premises - No need for a warrant

Question 4

Interception of telecommunications in EN difference between RIPA and IPA

Answer 4

1. RIPA 2000:
   - Wide powers to many authorities
   - No need for reasonable suspicion
   - No judicial supervision
2. IPA 2016:
   - Unlawful surveillance is criminalised
   - Judicial supervision
   - Must follow the principle of subsidiarity
   - More powers and not sufficient safeguards
   - Tele2/Watson  IPA is not in line with EU law

Question 5

Search of premises

Answer 5

1. If arrest, there can be immediate search without a warrant
2. ECHR accepts ex-post warrants
3. Germany:
   - Not sufficient safeguards
   - Warrant must be specific - Precise scale, person, goal, object
   - ‘Exigent circumstances’ –> Often used for danger in delay –> Creation of authorisation by phone and ‘emergency judges’ + Need for proof of danger in delay

Question 6

Interception of telecommunications EN Steps

Answer 6

1. Secretary of State
2. Necessary + Legitimate aim
3. Proportionality
4. Judicial Commissioner
5. Subsidiarity

Question 7

GPS Surveillance

Answer 7

1. Not clear whether within ECHR
2. EN - No regulation unless done via phone
3. GR - Same requirements as for interception of telecommunications if done by phone