CYIL 2014

DO LEGAL PERSONS HAVE THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE? that Bulgarian law did not provide sufficient guarantees against the risk of abuse, which was inherent in any system of secret surveillance. The decision of the Court in the case of Frank GmbH v. Germany 40 concerned the question of proportionality of the search and seizure warrant issued by the national court in respect of the applicant company. The search of its business premises and the seizure of a specific tachograph followed the aim to prosecute a traffic offence committed by one of its employees. The Court observed that an interference with the applicant company’s guaranteed right to respect for its “home” during the police search cannot be disputed. However, in order to give the decision in the case it was necessary to determine whether the interference was justified under paragraph 2 of Article 8. On the basis of the examination of the materials in its possession the Court came to the conclusion that the search had not been performed in an obtrusive manner. It pointed out that the search warrant was carefully formulated. The police officers who executed the warrant were only required to look for the cabinet where tachographs were kept and took the tachograph in question. In addition, there were no indications that this particular tachograph was in any way significant for the proper functioning of the company. Accordingly, the complaint was rejected as manifestly ill-founded, in accordance with Article 35 § 3 (a) and 4 of the Convention. The Court came to the same conclusion in the case of Polák Spol. s.r.o. v. the Czech Republic. 41 The applicant company complained under Article 8 of the Convention that its right to respect for its home and correspondence had been breached. It maintained in this respect that the high court had wrongly identified the place of its registered office and as a result they could be unable to receive correspondence from the court. The Court observed that both of the national high courts wrongly identified the applicant’s seat. Nevertheless, it concluded there was no indication in the case file that the applicant company’s rights under this provision have not been respected. Under Article 8, the Court has dealt with a few cases relating to gathering of information through secret surveillance. In the case of Herbecq and Association “Ligue des droits de l’homme” v. Belgium the applicant association alleged that there was no legislative provision governing video surveillance in Belgium. In its opinion such a situation constituted an interference with its aims and objectives, which included the defence of the principles of equality, freedom and humanism stemming from the Convention. In response, the Commission pointed out: “The applicant association itself cannot be the subject of any surveillance measure …”. 42 It added that there was nothing to prevent an association from acting on behalf of a certain number of individuals. The only condition is that the applicant association had to identify them and show that it had received specific instructions from each of them. 40 Frank GmbH v. Germany (dec.), no. 43005/07, 15 November 2011, unpublished. 41 Polák Spol. s.r.o. v. the Czech Republic (dec.), no. 45469/04, unpublished. 42 Herbecq and Association “Ligue des droits de l‘homme” v. Belgium (dec.), nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92A, p. 92.

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