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


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.
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