Search and seizure and the European Court of Human Rights: Ensuring effective protection at the domestic level

Abstract

The article discusses the approach of the European Court of Human Rights (ECtHR) to searches and seizures in criminal cases. It focuses on the general principles concerning these investigative measures developed in the ECtHR’s case law. The aim is to determine whether these principles can influence lawmakers and authorities applying the law at the domestic level in providing effective protection of the rights of individuals. The judgements from the last fifteen years are discussed, also to verify whether the approach of the ECtHR has evolved. The author claims that the holistic and case-by-case approach developed by the ECtHR has very little potential to influence domestic legal systems, even in general terms. The main reason is that no clear message is being sent to the national stakeholders as to how the legal texts and practice should be shaped. What can be observed is that even if confronted with the new digital reality influencing searches, the ECtHR has not made even a partial departure from the adopted holistic assessment of the interferences with the right to privacy. In such a reality, the burden of protecting the rights of the individual must be borne by the domestic authorities empowered to oversee searches.