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Interference with the right
to respect for private life
Sur veillance measures and sur veillance legal
frameworks can ultimately be subjected to the control
of the ECtHR. Once domestic remedies have been
exhausted, individuals can bring a case before the
ECtHR, alleging that surveillance measures are violating
their human rights. Before considering whether
a particular surveillance measure is justified under the
ECHR, the ECtHR will assess whether the applicant can
be considered a ‘victim’ under the ECHR to determine
whether their case is admissible.
Due to the necessarily secret character of surveillance
measures, applicants always struggle to demonstrate
that they were under surveillance. The court often joins
the question of whether an applicant can be considered
a “victim” (i.e., has victim’s status) with the question of
the existence of an interference with the right to private
life. Figure 3 presents the different stages of the ECtHR’s
review. This chapter focuses on the definition of the
interference with the right to respect for private life.
The ECtHR has held, in the context of examining
in abstracto claims,78 that the mere existence of a law
permitting surveillance in itself constitutes interference.
The ECtHR sets two conditions for deeming legislation
that permits surveillance measures an interference
Figure 3: Stages of control by ECtHR in the context of surveillance
Is the case admissible? / Is there an interference
with the right to private life?
Is surveillance in accordance with the law?
Does the surveillance follow a legitimate aim?
Is the measure necessary in a democratic society?
Source:
FRA, 2017
78 ECtHR, Roman Zakharov v. Russia [GC], No. 47143/06, 5
December 2015 (Grand Chamber), paras. 229-231; ECtHR,
Kennedy v. United Kingdom, No. 26839/05, paras. 118-129
and the judgments cited therein.
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