| Abstract [eng] |
Covert surveillance is the secret control of a person or persons (as an object) performed in accordance with the procedure and on the grounds established by the Laws and with the help of special technical measures. Modern democracies usually use covert surveillance as a preventive measure to ensure the security of the state and society, as well as to prevent the commission of criminal acts. In pursuing this objective, the State must consider not only the minimum standards for the protection of human rights set out in the Convention, but also the practice developed by the ECtHR. The application of covert surveillance measures, notwithstanding the human rights and freedoms enshrined in the Convention and the standards established by the case law, runs the risk of unduly restricting a person's right to respect for private life and secrecy of correspondence (Article 8 ECHR), the right to a fair trial and effective remedy (Articles 6 and 13 respectively ECHR). The case law developed by the ECtHR shows that in order to maintain a fair balance between the interests of the state and the protection of the rights of the individual, it is necessary to establish at least minimum standards of protection (guarantees of protection) for individuals in the national legislation. It is important to ensure that the system of covert surveillance established by national law and the application of such measures in specific cases are carried out in strict compliance with national law and the ECHR, are necessary in a democratic society and can be justified by a legitimate aim. The application of covert surveillance measures can be analysed in three stages. When analysing the authorization phase of covert surveillance, it is essential that the authority issuing permits to covertly monitor a person is satisfied that the covert surveillance will be carried out reasonably, by law. At the stage of the application of covert surveillance measures, the most important thing is that an independent, preferably judicial, supervisory control authority should have a real opportunity to evaluate and review the application of covert surveillance measures, the work of the surveillance authorities. Finally, the existence of a requirement to inform (notify) a person at any time that he has been subject to such measures is paramount in the application of covert surveillance measures. States cannot restrict an individual’s right to an effective remedy and thus create an illusory remedy mechanism. |
