NGOs under European Convention on Human Rights / Tymofeyeva

One of the newest cases decided by the Court in respect of the rights of Article 34 NGOs is Vinci Construction and GTM Génie Civil et Services v. France . 735 The case concerned inspections and seizures carried out by investigators from state authorities on the premises of two companies. The key question involved weighing the interests relating, on the one hand, to the legitimate search for evidence of offences under competition law, and, on the other, respect for the confidentiality of lawyer-client exchanges. The Court considered that the search and seizure of electronic data amounted to interference with the rights protected under Article 8 of the Convention, but the interference had been ‘in accordance with the law’. The inspections and seizures carried out in the applicant companies’ premises, however, had been disproportionate to the aim pursued. 736 Since it was known that the documents seized contained correspondence between a lawyer and his client, they was subject to increased protection. Where a judge was called upon to examine the allegations, he or she was required to examine in detail the documents at issue and, where appropriate, to order their return. 2.4.2.2 Gathering of information through secret surveillance Powers of secret surveillance of persons are tolerated under the Convention only insofar as they are strictly functional to safeguarding democratic institutions. 737 In the case of Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria , 738 the applicants alleged that by giving the authorities 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 non-profit 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 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 Bulgarian 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 that Bulgarian law did not provide sufficient guarantees against the risk of abuse, which was inherent in any system of secret surveillance. 735 Vinci Construction and GTMGénie Civil et Services v. France , nos. 63629/10 and 60567/10, 2 April 2015. 736 Ibid. , § 81. 737 ROAGNA, 2012, cited above, p. 51. 738 Association for European Integration, cited above.

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