Criminal investigation and right of privacy: The Case-Law of the European Court of Human Rights and its limits

AuthorLorena Bachmaier Winter
Pages9-19

    This paper has been prepared within the research project «Integración europea y armonización de las garantías fundamentales en el proceso penal» (SEJ2005-05719/JURI) financed by the Ministry of Science and Education.

Lorena Bachmaier Winter. Complutense University of Madrid, J.D.; Complutense University, M.A. in Political Science; Complutense University, J.S.D. Professor Bachmaier Winter has been a Professor at the Faculty of Law at Complutense University since 1996, where she has taught criminal procedure and civil procedure. She has written extensively on the subject of procedure. She has lectured in universities and governmental agencies in Europe and Latin America. She is a member of the Spanish Royal Academy of Jurisprudence and Legislation and of the Ibero-American Association of Procedural Law. She has been a fellow of the Alexander von Humboldt Foundation, and a visiting scholar in the Max-Planck-Institut for Criminal Law and Procedure (Freiburg i. Br., Germany) and at the University of California – Berkeley and Harvard University. Her comparative legal studies are focused on human rights and procedure, international judicial cooperation, comparative law and the EU process of legal harmonization. She has consulted for the Ministry of Justice of Spain. E-mail: l.bachmaier@der.ucm.es.

Keywords: case-law, European Court of Human Rights, the right to privacy, criminal investigation

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I Introduction

Organised crime, trans-national crime such as cyber-crime or money-laundering and the complex phenomenon of international terrorism – specially after the 11th September attacks in New – have posed new challenges to the criminal justice systems. These forms of criminality are conceived as global threats of historical dimensions1. Law enforcement agencies, in many cases are confronted to crimes that surpass the national boundaries, produce indiscriminate attacks and generate a feeling of insecurity that sometimes even reaches the state of a collective shock or at least emotional stress. In those circumstances the demand for more safety increases and, as Andrew Ashworth said it, when facing situations that are perceived as threats against one’s own existence, before such a relevant public interest, who cares about fundamental rights?2 Before the most serious forms of crime, and specially terrorism, there are even governments that tend to displace the traditional principles of criminal law in order to adopt pro-active measures and anticipate the commission of certain acts, justified within the concept of “the war against terror”3, which shall allow them to substitute a reactive system with a pro-active system, to introduce more intrusive investigatory measures and to apply notions of the state of exception to the field of fundamental rights4.

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In this context, where law enforcement agencies and even part of the society demand more effective measures to combat criminal actions, the fundamental right of privacy may be severely affected5. If more repressive measures are admitted to be needed, then also more intrusive measures may be accepted, something which entails higher risks for the protection of human rights6.

This paper tries to point out the main guidelines set up by the European Court of Human Rights in the protection of privacy within the criminal process. Through its case-law the ECHR has provided for a common standard of guarantees that have to be respected within the criminal proceeding. Although this doctrine has proved to be essential to a common understanding of fundamental rights and the principles of criminal justice –and to the European integration–, it still does not provide for a fixed set of rules that precisely define under which conditions can law enforcement authorities interfere within the right to privacy without violating Art.8 of the Convention. Due to the state margin of appreciation doctrine, there is no common understanding of the concept of privacy –which is probably right–. On the other hand the proportionality test is only very seldom applied to criminal investigative measures regarding to privacy and the Court tends to check almost exclusively the legality and forseeability rule; and in those few cases when it has entered to counterbalance the right to privacy against the public interest or need in a democratic society, the right to privacy is not valued in a uniform manner, but according to the specific circumstances of each particular case.

It is clear that reasonable proportionality must exist between investigative restrictive measures and the seriousness of the crime investigated, but where are the limits? Should there be different rules when facing a certain type of criminality? We have considered worth addressing these issues as we do not have a common standard to assess when the proportionality requirement is met when intrusive measures are granted within a criminal investigation.

II New Challenges on the Right of Privacy

If we have started this presentation addressing the reality of new forms of complex criminality like terrorism, it is not because this type of criminality can be considered as statistically relevant –it is by far one of the less frequent criminal actions–, but it is a good example that entails the three main risks for the protection of human rights and particularly for the right for privacy within the criminal investigation: 1) the existence of emotional stress; 2) the need fro pro-active action; 3) the definition of the fight against crime as a “state of war”7.

If we add the significant development of surveillance technologies and the possibility of collecting general information of potentially dangerous people –sometime unrelated to the prosecution of any criminal offence–, technologies that have led to the processing of huge newPage 11 types of data –administrative files, criminal records, genetic, medical or financial data–, the sphere of privacy may strongly be curtailed by a variety of intrusive measures. While these measures and the use of technology facilitates considerably the law enforcement activities, it definitely pose a high risk on the respect to the private life of the citizens. Privacy is elusive in modern society and some losses occur out of choice. The conflict always present in the criminal law, as was already expressed by Ernst Beling8, between the respect for individual rights and the public interest to guarantee public security and efficiently prosecute the criminal offences, is particularly evident in the field of the criminal investigation and the adoption of intrusive measures restrictive of fundamental rights. And technology has given the state much more access to private information than it once had. Thus perhaps it should be admitted that privacy, understood as the right to be let alone, is not realistic anymore9

In this context, the inevitable questions that arise are: What are the limits for those intrusions? Shall the present global citizen renounce to its privacy in order to guarantee the global security? Is it possible to reach a common meaning of privacy with regard to the criminal investigation?

On the other hand, in the present “information society, can we still conceive the privacy as a right with the same value as it had in XIX and XX century, or should we recognize that its significance has undergone a change over the last decades? I am trying to draw attention to the present sociological phenomenon that we are witnessing nowadays and which has been called the “extimacy” as opposed to intimacy, to define the extended practice of making the intimate sphere public to everyone through internet. Only in Spain out from a population of 45 mill people, 13 million use face-book or other social networks as a way of sharing their privacy. I recently read the work of an Argentinean anthropologist –P. Sibilia– that we are assisting to a change in the way we develop and build ourselves as individuals. Things that were traditionally considered to belong to the private sphere are now exposed to others. The introspective attitude is devaluated, and in some circles, only the one who communicates and publicly shares his most intimate thoughts and private emotions and experiences is regarded as fully integrated in society. Does this mean that the protection of privacy should also change in accordance to this new value? Is it still so important to preserve the privacy whilst we assist to a voluntarily exposure of that private sphere?10

We do not intend to come to conclusive and precise answers to these questions in this paper. Our aim is only to open a discussion on these issues, and stress out the need to agree on minimum standards that should apply within criminal investigations. Nevertheless, we already advance our opinion towards the respect for private life within the criminal investigation:

1) The right to privacy covers several aspects11, and one of it is the right to self-determine the disclosure of personal information. No one can interfere in the private sphere that the individual has decided not to share with others, unless there is a ground that justifies it for reasons of public interest and with the safeguards established by the ECHR. The fact that many peoplePage 12 open their intimacy to others through internet, does not allow the state or any law enforcement authority to intrude in that part of the privacy which has not been made public12.

2) Following the case-law of the ECHR: even in the most difficult circumstances, such as the fight against terrorism and organised crime” the protection of fundamental rights remains non-negotiable beyond the exceptions and derogations...

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