CYIL 2014

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ALLA TYMOFEYEVA

CYIL 5 ȍ2014Ȏ

In the aforementioned case of

Société Colas Est and Others v. France

the

applicants were three French companies, Colas Est, Colas Sud-Ouest and Sacer. The

applicant companies alleged a violation of their right to respect for their “home”,

relying on Article 8 of the Convention. They contested the lawfulness of the searches

and seizures carried out by the inspectors without any judicial authorisation. Regarding

the “legitimate aim”, it was observed that the purpose of the interference with the

applicant companies’ right to respect for their premises was to obtain evidence of

unlawful agreements between public-works contractors and served the interests

of both the economic well-being of the country and the prevention of crime. As

regards the proportionality of the interference, it was noticed that the inspections

in issue took place without any prior warrant being issued by a judge and without

a senior police officer being present. Given that, even supposing that business premises

of legal persons enjoy less protection, the Court considered that the impugned

operations in the competition field could not be regarded as strictly proportionate to

the legitimate aims pursued and, accordingly, there had been a violation of Article 8

of the Convention.

Powers of secret surveillance of persons are tolerated under the Convention only

in so far as they are strictly functional to safeguarding the democratic institutions.

In the case of

Association for European Integration and Human Rights and Ekimdzhiev

v. Bulgaria

the applicants alleged that by giving the authorities a wide discretion

to gather and use information obtained through secret surveillance, the domestic

legislation entailed by its very existence a violation of Article 8 of the Convention.

The applicants in the present case were a nonprofit association (the Association for

European Integration and Human Rights), called “the applicant association”, and Mr

Mihail Ekimdzhiev, “the second applicant”.

The Court noted that the legislation of Bulgaria did not provide for any review

of the implementation of secret surveillance measures by a body or official that was

either external to the services deploying the means of surveillance or at least required

to have certain qualifications ensuring his independence and adherence to the rule

of law. In addition, Bulgarian law lacked regulations specifying with an appropriate

degree of precision the manner of screening of the intelligence obtained through

surveillance, or the procedures for preserving its integrity and confidentiality and the

procedures for its destruction. Moreover, the overall control over the system of secret

surveillance was entrusted solely to the Minister of Internal Affairs, who was not only

a member of the executive but also directly involved in the commissioning of special

means of surveillance. On the basis of these findings the Court concluded that there

had been a violation of this provision in respect of both applicants. Namely, it noted

Société Colas Est and Others v. France

, no. 37971/97, ECHR 2002-III.

ROAGNA, I.

Protecting the right to respect for private and family life under the European Convention on

Human Rights

. Council of Europe human rights handbooks. Strasbourg: Council of Europe, 2012, p. 51.

Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria

, no. 62540/00,

28 June 2007.