R.E. v. the United Kingdom (application no. 62498/11)
 
Legal safeguards regarding covert surveillance of a detainee’s consultations with his lawyer were insufficient at the time of his custody
 
The applicant in the case of R.E. v. the United Kingdom (application no. 62498/11), who was arrested and detained in Northern Ireland on three occasions in connection with the murder of a poliçe officer, complained in particular about the regime for covert surveillance of consultations between detainees and their lawyers and between vulnerable detainees1 and “appropriate adults”2.
In today’s Chamber judgment3 in the case the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for private and family life, home and correspondence) of the European Convention on Human Rights as concerned the covert surveillance of legal consultations; and,
no violation of Article 8 of the European Convention as concerned the covert surveillance of consultations between detainees and their “appropriate adults”.
The case was considered from the standpoint of the principles developed by the Court in the area of interception of lawyer-client telephone calls, which call for stringent safeguards. The Court found that those principles should be applied to the covert surveillance of lawyer-client consultations in a police station. The Court noted that guidelines arranging for the secure handling, storage and destruction of material obtained through such covert surveillance have been implemented since 22 June 2010. However, at the time of Mr. R.E.’s detention in May 2010, those guidelines had not yet been in force. The Court was not therefore satisfied that the relevant domestic law provisions in place at the time had provided sufficient safeguards for the protection of Mr R.E.’s consultations with his lawyer obtained by covert surveillance.
As concerned consultations between a vulnerable detainee and an “appropriate adult”, the Court found that they were not subject to legal privilege and therefore a detainee would not have the same expectation of privacy as for a legal consultation. Furthermore, the Court was satisfied that the relevant domestic provisions, insofar as they related to the possible surveillance of consultations between detainees and “appropriate adults”, were accompanied by adequate safeguards against abuse.

Sher and Others v. the United Kingdom (application no. 5201/11)
 
UK courts struck right balance between the fight against terrorism and suspects’ procedural rights
 
In today’s Chamber judgment1 in the case of Sher and Others v. the United Kingdom (application no. 5201/11) the European Court of Human Rights held:
by six votes to one, that there had been no violation of Article 5 § 4 (right to take proceedings to challenge lawfulness of detention) of the European Convention on Human Rights;
and unanimously, that there had been no violation of Article 8 (right to respect for private and family life) of the Convention.
The case concerned the arrest and detention of three Pakistani nationals, the applicants, in the context of a counterterrorism operation. The applicants were detained for 13 days, before ultimately being released without charge. During that period they were brought twice before a court with warrants for their further detention being granted. They were then taken into immigration detention and have since voluntarily returned to Pakistan. In their complaints before the European Court, they complained in particular about the hearings on requests for prolongation of their
detention because certain evidence in favour of their continued detention had been withheld from them and that one such hearing had been held for a short period in closed session. They also complained about the search of their homes during their detention.
The Court accepted that the UK authorities had suspected an imminent terrorist attack and had launched an extremely complex investigation aimed at thwarting it. Reiterating that terrorism fell into a special category, it held that Article 5 § 4 could not be used to prevent the use of a closed hearing or to place disproportionate difficulties in the way of poliçe authorities in taking effective measures to counter terrorism. In the applicants’ case, the threat of an imminent terrorist attack and national security considerations had justified restrictions on the applicants’ right to adversarial proceedings concerning the warrants for their further detention.
Similarly, the Court found that the fight against terrorism and the urgency of the situation had justified a search of the applicants’ homes pursuant to a search warrant framed in relatively broad terms.
Moreover, there had been sufficient safeguards against the risk of arbitrariness both in respect of the proceedings for warrants of further detention, in the form of a legal framework setting out clear and detailed procedural rules, as well as in respect of the search warrants, which had been issued by a judge, without the applicants suggesting that there had been no reasonable grounds for doing so.

In today’s Chamber judgment in the case of Vinci Construction and GMT genie civil and services v. France (applications no. 63629/10 and 60567/10) the European Court of Human Rights held, unanimously, that there had been:

a violation of Article 6 § 1 (right to a fair trial) of the European Convention on Human Rights, and

a violation of Article 8 (right to respect for private and family life, for the home and for correspondence).

The case concerned inspections and seizures carried out by investigators from the Department for Competition, Consumer Affairs and Fraud Prevention on the premises of two companies. The central question was the weighing up of interests relating, on the one hand, to the legitimate search for evidence of offences under competition law, and, on the other, respect for home, private life and correspondence, and particularly for the confidentiality of lawyer-client exchanges.

The Court considered that the safeguards provided by domestic law, regulating inspections and seizures conducted in the area of competition law, had not been applied in a practical and effective manner in this case, particularly since it was known that the documents seized contained correspondence between a lawyer and his client, which was subject to increased protection. The Court held that where a judge was called upon to examine reasoned allegations that specifically identified documents had been seized, although they were unrelated to the investigation or were covered by legal professional privilege, he or she was required to examine in detail the documents in question and to order their return where appropriate.

Refusal to authorise transsexual to have access to gender reassignment surgery breached right to respect for private life
In today’s Chamber judgment in the case of Y. Y. v. Turkey (application no. 14793/08) the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights
The case concerned the refusal by the Turkish authorities to grant authorisation for gender reassignment surgery on the grounds that the person requesting it, a transsexual, was not permanently unable to procreate.
The Court reiterated that the possibility for transsexuals to have full enjoyment of the right to personal development and physical and moral integrity could not be regarded as a controversial question. It considered that, even supposing that the denial of the applicant’s initial request for access to such surgery had been based on a relevant ground, it was not based on a sufficient ground.
The resulting interference with the applicant’s right to respect for his private life could not be considered “necessary” in a democratic society.
In denying the applicant, for many years, the possibility of undergoing such an operation, the State had breached the applicant’s right to respect for his private life.