Allgemein

Search of persons without reasonable suspicion in light of article 8 ECHR

Holger Hembach · 10. June 2012 ·

In Colon v The Netherlands, the European Court of Human Rights has scrutinized laws authorizing the search of persons without reasonable suspicion in light of article 8 ECHR.

Pursuant to Dutch law, the mayor (Burgomaster) may designate certain areas as ‘security risk area’ for a limited time. As a consequence of this designation, the Public Prosecutor has the power to issue an order to the effect that randomly selected persons within this area may be subjected to a search. The order by the public prosecutor is limited to 12 hours and may be issued at a time of his choosing. Before designating a ‘security risk area’, the mayor has to consult with the Public Prosecutor. He is also obliged to consult with the police authorities on a regular basis.

Following a significant rise in violent crime involving the use of weapons in Amsterdam, the mayor designated certain areas of the city as special security areas. At some stage, the Public Prosecutor issued an order authorizing random searches.

The applicant was stopped by the police but refused to agree to a search. He was taken to the police station and later on sentenced to a fine of 150 Euros for disobeying an order by the police. He appealed against this decision but his conviction was ultimately confirmed by the Dutch Supreme Court.

The European Court of Human Rights scrutinized whether the applicant’s right toprivate life under article 8 ECHR had been infringed. It stated that there had been an interference with the right to private life, since the applicant had run the risk to be stopped and searched at any time, yet it did not find a violation of the right to private life, because the interference had been justified pursuant to article 8 paragraph 2 ECHR.

It is interesting, to compare this decision to the judgment in Gillan and Quinton vUK, in which the Court held that British laws empowering police to search randomly selected persons violated the right to private life: In view ofgrowing dangers caused by terrorism (related to Northern Ireland and other issues), the Terrorism Act 2000 had been enacted.

This act contained provisions pursuant to which certain senior police officers were empowered to issue an authorization to the effect that each uniformed police officer had the right to randomly, i.e. without any reasonable suspicion, stop and search persons in a certain area.

The existence and contents of these authorizations are not in the public domain. The Secretary of State had to be informed about this authorization and had the power to cancel or alter it. Also, the Secretary of State was obliged to report to the parliament on the use of the power to stop and search on a yearly basis.

In both cases, the Dutch case as well as the British one, the European Court of Human Rights held that the power to search persons without reasonable suspicion amounted to an interference with article 8 ECHR.

Pursuant to article 8 paragraph 2 ECHR, such an interference has to be based on a law. The Court has specified which requirements a law prescribing an interference with the rights enshrined in article 8 paragraph 1 has to meet. The difference between the Dutch case and Gillan and Quinton v UK was that the British legal framework did not comply with these requirements while the Dutch law did.

As the European Court of Human Rights has reiterated, a law prescribing an interference with the right to private life has to be publicly accessible. While the designation of ‘security risk areas’ as well as the authorization to conduct searches issued by the Public Prosecutor were public documents in the Netherlands, in the UK the authorizations to stop and search given by senior police officers were not in the public domain.

Another requirement is that the scope of the law prescribing an interference with rights protected by article 8 paragraph 1 ECHR has to be clear and that sufficient safeguards against abuse have to be in place.

In the Netherlands, there was an effective possibility to challenge orders to search persons: Citizens could submit complaints regarding the designation of ‘special risk areas’ to the City Council and appeal against the decision of the Council before an administrative court. In addition to that, Courts had to assess the legality of search orders independently when cases against persons who had refused to have themselves searched came before them.

In the UK, the order authorizing searches issued by a senior police officer had to be confirmed by the Secretary of State; however, the European Court of Human Rights did not consider this an efficient safeguard, because on the basis of available documents it came to the conclusion that the authorization was practically always confirmed. While it was true that the order expired after 28 days, it was renewable.

The Court also pointed out that there was hardly any possibility to challenge the decision of a uniformed police officer to make use of the power to stop and search somebody. Although it was in theory possible to appeal against this decision, the Court found that it was in practice almost impossible to show that a police officer had exceeded his powers, since so much discretion was conferred on him.

Due to these differences, the Court found the British law pertaining to searches without reasonable suspicion in violation of article 8 ECHR, while it found the Dutch rules to be compliant with the right to private life.

Interim measure in Yuliya Timoshenko v. Ukraine lifted

Holger Hembach · 2. June 2012 ·

The European Court of Human Rights (ECtHR) has lifted the interim measure it had imposed in the case Yuliya Timoshenko v Ukraine on 31 May 2012.

Interim measures are not expressly stipulated in the European Convention on Human Rights; they are provided for in article 39 of the Rules of Court. These rules have been adopted by the ECtHR to govern details of the procedure before the Court. Article 39 of the Rule of Court provides that ‘the Chamber or, where appropriate, its President may indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper proceedings before it’.

Interim measures are chiefly issued where an irreversible fact might be created or irreparable damage to an important right might be caused before the Court can make its ruling. The main areas of application are the right to life under article 2 of the Convention and the prohibition of torture pursuant to article 3 ECHR. In the case Mamatkulov and Askarov v Turkey, the Court has held that interim measures are binding to the parties and that failure to comply with interim measures constitutes a breach of article 34 ECHR.

Miss Timoshenko had submitted an application to the Court in which she inter alia alleged that her criminal prosecution and that the conditions of her detention, the insufficient access to health care and the lack of judicial review amounted to infringements of articles 3 and 5 ECHR.

The Court had ordered an interim measure on 15 March 2012, in which it had requested that Miss Timoshenko receive adequate medical treatment. The Government had transferred her to a Ukrainian hospital and enabled her to be examined by a doctor of her choosing, a German neurologist. Given these development, the European Court of Human Rights was of the view that an interim measure was no longer called for. It therefore lifted the measure upon request by the Ukrainian Government.

At the same time, it rejected Yuliya Timoshenko’s motion to issue an interim measure that she be granted the possibility to obtain treatment in a German clinic.

Judgment in the case Bjedov v Croatia

Holger Hembach · 31. May 2012 ·

On 29 May 2012, the European Court of Human Rights handed down the judgment in the case Bjedov v. Croatia. The Court scrutinized the eviction of a senior citizen from the flat she lived in in light of the right to respect for home under article 8 of the European Convention on Human Rights.

The applicant, who was born in 1933 and received only a small pension, lived in a flat which she had rented on favorable conditions which were foreseen by law for indigent persons. According to this law, tenants could by the flat they lived in subject to certain conditions. The applicant had sought to exercise this right. Since her request had remained unanswered, she had filed a law suit against the city, which was the owner of the flat. In return, the city had initiated civil proceedings to evict the applicant from her flat. Following a number of appeals, the domestic court had ordered the eviction of the applicant by final decision.

The applicant contended inter alia that her eviction constituted a violation of her right to home under article 8 of the European Convention on Human Rights.

The European Court of Human Rights reiterated its jurisdiction that the right to home applied not only to residences occupied in a lawful manner. Thus, the applicant could invoke article 8 ECHR regardless of the final decision by domestic courts ordering her eviction.

The Court stated that the eviction order interfered with the applicant’s right to home. It then turned to the question whether this interference was justified pursuant to article 8 paragraph 2 ECHR.

Referring to the relevant Croatian laws, the Court found that the eviction order was based on a law. It reiterated, however, that the eviction also had to be necessary in a democratic society. In this respect, the European Court of Human Rights noted that the domestic courts had not assessed at all whether the eviction was necessary in a democratic society. Before Croatian courts, the applicant had expressly relied on her right to respect for home under article 8 ECHR; she had also advanced the argument that her eviction would render her homeless and submitted a medical certificate confirming the risks which an eviction would impose for her health, because of her high age. Yet, the domestic courts had failed to balance her interest to remain in the flat with the city’s interest in an eviction.

For these reasons, the European Court of Human Rights that the applicant’s eviction was not necessary in a democratic society and found a violation of article 8 ECHR.