in connection with Article 8(1) of the European Convention,542 which protects the right to respect for private
and family life.
301. The European Court recalled that such right covers protection of individuals in their private lives vis-àvis State intelligence activities.543 This, bearing in mind technological advances in recent decades and possible
interference with email, cell phones, and Internet usage States can engage in against individuals.544
302. The European Court likewise indicated that interference of this kind in the private life of an individual
can be justified under Article 8(2) of the European Convention545 if it is in accordance with the law, pursues
one or more of the legitimate aims referred to in that provision, and is necessary in a democratic society in
order to achieve such aim.546 The European Court added that Article 8(2) is to be narrowly interpreted.547
303. First, interception activities must be provided for by law. The European Court, in analyzing these types
of cases, has held that the expression, “in accordance with the law,” requires that the measure being challenged
be based in domestic law.548 This means that that provision is compatible with the Rule of Law.549
304. Regarding this point, the European Court has maintained that “foreseeability” in the context of
interception of communications cannot be the same as in many other fields.550 Foreseeability in the special
context of secret measures of surveillance, such as the interception of communications, cannot mean that an
individual should be able foresee when the authorities are likely to intercept his communications so that he
can adapt his conduct accordingly.551 However, the risks of arbitrariness are evident.552 It is therefore essential
to have clear, detailed rules on interception of telephone conversations.553 Domestic law must be sufficiently
clear to give citizens an adequate indication as to the circumstances in which and the conditions under which
public authorities are empowered to resort to any such measures.554
305. Additionally, the European Court has held that this provision must provide for the following safeguards:
(i) the nature of offences which may give rise to an interception order; (ii) a definition of the categories of
people whose telephones may be tapped; (iii) a limit on the duration of telephone tapping; (iv) the procedure
to be followed for examining, using, and storing the data obtained; (v) the precautions to be taken when
communicating the data to other parties; (vi) and the circumstances in which recordings may or must be
erased or destroyed.555
306. In its judgment of December 2016 in the case of Szabó and Vissy v. Hungary, the European Court
analyzed State intelligence activities directed at members of a non-governmental organization that was
critical of the administration in power at the time.556 The activities identified included recording telephone
calls and copying e-mails.
Article 8(1) of the European Convention on Human Rights: Everyone has the right to respect for his private and family life, his home,
and his correspondence.
543 ECHR, Copland v. United Kingdom. Judgment of 4 March 2007, paragraph 41.
544 ECHR, Copland v. United Kingdom. Judgment of 4 March 2007, paragraph 41.
545 Article 8(2) of the European Convention on Human Rights: 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 well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the
protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.
546 ECHR, Szabó and Vissy v. Hungary. Judgment of 6 June 2016, paragraph 54.
547 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 54.
548 ECHR. Lambert v. Romania. Judgment of 26 April 2007, paragraph 61.
549 ECHR, Roman Zakharov v. Russia, Judgment of 12 April 2006, paragraph 236.
550 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 62.
551 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 62.
552 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 62.
553 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 62.
554 ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016, paragraph 62.
555 ECHR, Roman Zakharov v. Russia. Judgment of 12 April 2006, paragraph 231.
556 For further information see: ECHR, Szabó and Vissy v. Hungary, Judgment of 6 June 2016.
542
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