9 months ago


Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 67 ■ In Rantsev v Cyprus and Russia, the Court emphasised that positive obligations to prevent and to protect may arise (in the context of cross-border trafficking) both in the country of origin and also in the country of destination (and potentially also in any country of transit). Here, a young Russian woman had died in unexplained circumstances after having fallen from a window of a block of flats in Cyprus where she had gone to work on an ‘artiste’ visa. The death had occurred an hour after police had asked the manager of the cabaret where she had worked for three days before fleeing to collect her from a police station. An inquest had decided that she had died in an attempt to escape from the apartment in circumstances resembling an accident, but that there had been no evidence to suggest criminal liability for the death. Against the background of reports suggesting the prevalence in Cyprus of trafficking in human beings for commercial sexual exploitation and the role of the cabaret ‘industry’ and ‘artiste’ visas in facilitating such trafficking, the woman’s father successfully argued that the Cypriot police had failed to protect his daughter from trafficking and to punish those responsible for her death, and also that the Russian authorities had failed to investigate his daughter’s trafficking and to take steps to protect her from the risk of trafficking. 191 Preventing and investigating crime – surveillance, and obtaining evidence through searches, etc.: Article 8, European Convention on Human Rights A decision to carry out a search of a person or of premises, or to instigate surveillance by intercepting correspondence or e-mails, or by placing electronic eavesdropping devices in a home or car, will give rise to an interference with the right to respect for private or family life, home or correspondence within the meaning of Article 8 of the European Convention on Human Rights. The text of this is as follows: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 191 Rantsev v Cyprus and Russia, judgment of 7 January 2010 at paragraphs 272-309.

The European Convention on Human Rights and Policing Page 68 ‘Private life’ is ‘a broad term not susceptible to exhaustive definition’: it includes such matters as telephone tapping and electronic surveillance, release of images by the police to the media, data retention by the police, and forcible medical examination. A wide range of accommodation may constitute ‘home’ for the purposes of Article 8, and indeed, ‘home’ may extend beyond the domestic sphere to business premises (and thus the search of a company’s offices and premises also falls within the scope of Article 8). 192 ■ Niemietz v Germany involved a court-authorised search of a lawyer’s office. In deciding that in certain circumstances business premises could fall within the scope of ‘home’, the Court remarked that any precise distinction between office and home would often be difficult to draw ‘since activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not so related may well be carried on in an office or commercial premises’. 193 The acquisition, retention, use or disclosure of personal information by the police constitutes an interference with Article 8. 194 Respect for ‘home’ may give rise to questions including physical intrusion into a home to carry out a search, and possibly also non-physical intrusion through telephone tapping. 195 ‘Correspondence’ is obviously related closely to both ‘private life’ and ‘family life’ and is broad enough to cover most means of communication. Thus a range of techniques used in the prevention or investigation of crime such as the interception of communications, 196 the use of electronic listening devices, 197 the monitoring of emails 198 and the use of GPS tracking devices 199 involve interferences with Article 8 rights, even if no subsequent use is ever 192 Stés Colas Est and Others v France, judgment of 16 April 2002 at paragraphs 40-50. 193 Niemietz v Germany, judgment of 16 December 1992 at paragraphs 30-31. 194 Rotaru v Romania, judgment of 4 May 2000. 195 Klass v Germany, judgment of 6 September 1978 at paragraph 41 (point raised but not decided). 196 Malone v the United Kingdom, judgment of 2 August 1984 at paragraph 64 (telephone tapping). 197 E.g. Khan v the United Kingdom, judgment of 12 May 2000 at paragraph 25 (evidence obtained by tape-recording of conversations); PG and JH v the United Kingdom, judgment of 25 September 2001 at paragraphs 37 and 42 (visual surveillance, covert listening device, and obtaining details of telephone calls). 198 Copland v the United Kingdom, judgment of 3 April 2007 at paragraphs 41-42. 199 Uzun v Germany, judgment of 2 September 2010 at paragraphs 49-53 (surveillance via GPS tracking device).