4.6.3 Illegal search, raid or surveillance of association/organization Condensed entry: Any search or raid of an association or organization must be justified by a well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized. A search must be reasonable in the particular circumstances[1] and states must provide a valid explanation of why an association or organization is searched or raided. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wiretapping and recording of conversations, require strong justification and should be accompanied by safeguards against abuse. Comprehensive entry: Any search or raid of an association or organization must be justified by a ‘well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized’.[2] A search must be reasonable in the particular circumstances[3] and states must provide a valid explanation of why an association or organization is searched or raided.[4]The activities of an association or organization ‘should be presumed to be lawful in the absence of contrary evidence’.[5] According to the HRC, ‘[s]earches of a person's home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.’[6] The focus on ‘home’ follows from the prohibition on unlawful interference with privacy, family, home or correspondence as provided for in article 17 of the ICCPR. The HRC has noted that ‘home’ is ‘to be understood to indicate the place where a person resides or carries out his usual occupation’.[7] However, it is clear that any search whether of a person, home or other premises should not violate other rights such as the right to freedom of expression or religion for example by harassment or the prevention of gatherings.[8] In Umarov v Uzbekistan the offices of a political movement, the Sunshine Coalition, were raided. Mr Umarov, a leader of the Coalition, was arrested when he arrived at the premises. The HRC held that the government had ‘failed to explain the purpose of the … search’ and that Mr Umarov ‘was arrested and imprisoned in order to prevent him, as a member of a political formation, from expressing his political views.’[9] (See *interference with opinions held or expressed*). Surveillance requires strong justification and should be accompanied by safeguards against abuse. The HRC held in General Comment 16 that ‘surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wiretapping and recording of conversations should be prohibited’.[10] However, the HRC has in its concluding observations on state reports accepted that surveillance may be necessary inter alia for preventing terrorist acts, but that ‘processing and gathering of information [must] be subject to review and supervision by an independent body with the necessary guarantees of impartiality and effectiveness.’[11] There must also be a clear legal framework for when surveillance may be used.[12]According to the ECtHR:[13] Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime. Secret surveillance for the protection of national security poses a danger of undermining or even destroying democracy on the ground of defending it, hence there must be adequate and effective procedural guarantees, such as judicial control or review, against abuse.[14] Storage of personal data related to political opinion, affiliations and activities that is deemed unjustified for the purposes of the right to respect for private life also violates freedom of association.[15] (See *arbitrary or unlawful interference with privacy*; *arbitrary or unlawful interference with family, home or correspondence*).
[1] HRC General Comment 16 para 4. [2] Garcia v Peru case 11.006 (IACmHR 1995). See also Imakayeva v Russia application 7615/02 (ECtHR 2006) para 189. [3] HRC General Comment 16 para 4. [4] Cf Umarov v Uzbekistan communication 1449/2006 (HRC 2010) para 8.8 [5] CoE Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe para 67. [6] HRC General Comment 16 para 8. [7] HRC General Comment 16 para 5. [8] Report of the Special Rapporteur on freedom of religion or belief, A/HRC/10/8/Add.4 (2009) para 70. [9] Umarov v Uzbekistan para 8.8. [10] HRC General Comment para 8. [11] Concluding Observations: Sweden, CCPR/C/SWE/CO/6 (HRC, 2009), para 18. [12] Concluding Observations: Hong Kong Special Administrative Region, CCPR/C/HKG/CO/2 (HRC, 2006), para 12. [13] Klass and Others v Federal Republic of Germany application 5029/71 (ECtHR 1978) para 48. [14]Leander v Sweden application 9248/81 (ECtHR 1987) para 60. [15] Segerstedt-Wiberg and Others v Sweden application 62332/00 (ECtHR 2006) para 107.
Condensed entry:
Any search or raid of an association or organization must be justified by a well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized. A search must be reasonable in the particular circumstances[1] and states must provide a valid explanation of why an association or organization is searched or raided. Surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wiretapping and recording of conversations, require strong justification and should be accompanied by safeguards against abuse.
Comprehensive entry:
Any search or raid of an association or organization must be justified by a ‘well-substantiated search warrant issued by a competent judicial authority, spelling out the reasons for the measure being adopted and specifying the place to be searched and the objects that will be seized’.[2] A search must be reasonable in the particular circumstances[3] and states must provide a valid explanation of why an association or organization is searched or raided.[4]The activities of an association or organization ‘should be presumed to be lawful in the absence of contrary evidence’.[5]
According to the HRC, ‘[s]earches of a person's home should be restricted to a search for necessary evidence and should not be allowed to amount to harassment.’[6] The focus on ‘home’ follows from the prohibition on unlawful interference with privacy, family, home or correspondence as provided for in article 17 of the ICCPR. The HRC has noted that ‘home’ is ‘to be understood to indicate the place where a person resides or carries out his usual occupation’.[7] However, it is clear that any search whether of a person, home or other premises should not violate other rights such as the right to freedom of expression or religion for example by harassment or the prevention of gatherings.[8] In Umarov v Uzbekistan the offices of a political movement, the Sunshine Coalition, were raided. Mr Umarov, a leader of the Coalition, was arrested when he arrived at the premises. The HRC held that the government had ‘failed to explain the purpose of the … search’ and that Mr Umarov ‘was arrested and imprisoned in order to prevent him, as a member of a political formation, from expressing his political views.’[9] (See *interference with opinions held or expressed*).
Surveillance requires strong justification and should be accompanied by safeguards against abuse. The HRC held in General Comment 16 that ‘surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wiretapping and recording of conversations should be prohibited’.[10] However, the HRC has in its concluding observations on state reports accepted that surveillance may be necessary inter alia for preventing terrorist acts, but that ‘processing and gathering of information [must] be subject to review and supervision by an independent body with the necessary guarantees of impartiality and effectiveness.’[11] There must also be a clear legal framework for when surveillance may be used.[12]According to the ECtHR:[13]
Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime.
Secret surveillance for the protection of national security poses a danger of undermining or even destroying democracy on the ground of defending it, hence there must be adequate and effective procedural guarantees, such as judicial control or review, against abuse.[14] Storage of personal data related to political opinion, affiliations and activities that is deemed unjustified for the purposes of the right to respect for private life also violates freedom of association.[15] (See *arbitrary or unlawful interference with privacy*; *arbitrary or unlawful interference with family, home or correspondence*).
[1] HRC General Comment 16 para 4.
[2] Garcia v Peru case 11.006 (IACmHR 1995). See also Imakayeva v Russia application 7615/02 (ECtHR 2006) para 189.
[3] HRC General Comment 16 para 4.
[4] Cf Umarov v Uzbekistan communication 1449/2006 (HRC 2010) para 8.8
[5] CoE Recommendation CM/Rec(2007)14 on the legal status of NGOs in Europe para 67.
[6] HRC General Comment 16 para 8.
[7] HRC General Comment 16 para 5.
[8] Report of the Special Rapporteur on freedom of religion or belief, A/HRC/10/8/Add.4 (2009) para 70.
[9] Umarov v Uzbekistan para 8.8.
[10] HRC General Comment para 8.
[11] Concluding Observations: Sweden, CCPR/C/SWE/CO/6 (HRC, 2009), para 18.
[12] Concluding Observations: Hong Kong Special Administrative Region, CCPR/C/HKG/CO/2 (HRC, 2006), para 12.
[13] Klass and Others v Federal Republic of Germany application 5029/71 (ECtHR 1978) para 48.
[14]Leander v Sweden
application 9248/81 (ECtHR 1987) para 60.
[15] Segerstedt-Wiberg and Others v Sweden application 62332/00 (ECtHR 2006) para 107.