Balancing Security and Liberty Within the European Human Rights Framework. A Critical Reading of the Court's Case Law in the Light of Surveillance and Criminal Law Enforcement Strategies After 9/11

• NCJ Number: 211431
• Journal: Utrecht Law Review Volume: 1 Issue: 1 Dated: September 2005 Pages: 68-96
• Author(s): Paul De Hert
• Date Published: September 2005
• Length: 29 pages
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: Netherlands
• Note: Downloaded September 27, 2005.

Annotation

This paper discusses the balancing of liberty and security under the European Convention for the Protection of Human Rights and the case law of the European Court of Human Rights.

Abstract

The basic document of the European human rights framework is the European Convention for the Protection of Human Rights. The Council of Europe instituted a judicial procedure that allows individuals to bring actions against government if they believe they have been victims of a violation of the Convention. After the exhaustion of national remedies, individual complainants have direct access to an international court, the European Court of Human Rights in Strasbourg. Of importance in the contemporary context of the terrorist threat to European states is article 8 of the Convention, which states that: "Everyone has the right to respect for his private and family life, his home, and his correspondence." The history of the case law regarding article 8 has contributed to a solid framework of privacy protection. This paper provides examples of the Court's wide interpretation of article 8. The Court has gradually developed the view that a legal basis for privacy infringements should not only exist, but should also meet some qualitative requirements, namely, accessibility and foreseeability. Other articles pertinent to security pressures on human rights include article 3 of the Convention, which prohibits torture and inhuman or degrading treatment or punishment; article 5 on detention and the right to liberty; article 15, which pertains to derogations in time of emergency; and article 6 which guarantees the right to a fair trial. The European structure for human rights in the context of a push for maximum security, however, will not hold back security uses of contemporary technology. National and European legislators should recognize that their powers to define new measures largely remain unchecked by the European judicial mechanism. 154 notes