Defne’s notes:

LECTURE 2 CRIMINAL – INVESTIGATIVE MEASURES

INVESTIGATION: GENERAL CHARACTERISTICS

 Building a hypothesis: Prosection/ Trial
o Preventive reasons – to prevent criminal offences
 Intelligence, evidence (difference between them)
o Evidence – (the normative term) any information that proves or disproves
charges against the accused information to prove or disprove charges
against accused;
o Intelligence – any type of information that is of value; doesn’t necessarily
have the power to prove or disprove the charges

Which one should one use?

 We have to see what is available for the certain offence (in abstracto) (in general
which evidence is allowed??)
 What type of alleged offence we are talking about  definition of criminal liability
and the facts (in concreto) (you know exactly what kind of evidence u need because u
know the mens rea and the actus reus)

How much evidence we need?  depending on the way the crime was committed
- SBL: definition of offence
- CCP: level of proof, evidentiary value, circumstances e.g. flagrant crime(also called
red-handed crimes) (see session 7)

The end: Have we formulated a hypothesis? (is this case defendable in court)
 Yes  we move on (prosecution, trial, out of court settlement)
 No  dismiss the case, archive the case, more investigation can be ordered

VARIETY OF INVESTIGATIVE MEASURES

Searches  search a person, premises, vehicles, biometrical data, databases

Interviews  to collect experiences; suspect (interrogation), witnesses (including the

victim), experts

Surveillance:
 Traditional surveillance e.g. undercover agents
 Technical surveillance  GPS, CCTV (street cameras?), telecommunications
interceptions, internet surveillance-software, bugging premises, photos)
 3rd parties – their rights also interfered with by surveillance even if they don’t have
anything to do with the offence
 Surveillance can take place in private or in public
 When surveillance happens in public u have to check if your privacy is interfered with
if yes this is an investigative measure; if u shout some information on your own and
the police hears u this is not an investigative measure;
  Border controls, airport controls, traffic controls NOT SURVELIANCE MEASURE;
NOR CRIMINAL INVESTIGATION; it is just in the context of airplane security, however,
if they find cocaine in you they start a criminal investigation;

SECURITY V LIBERTY
Principle of ultima ratio (subsidiarity principle) – some measures should be used as a last
resort

Principle of proportionality – measures should be proportional to the goal and to the

severity of the offence;

We want to get reliable evidence + fair evidence that can be used at trial

Balancing act at different levels:

 Torture or microchip, DNA geographical ancestry  some things will never be legal
o You can record what was said but cannot record a video of someone
 How to execute the measure?  create methods, guarantees, e.g. judicial warrant,
time limitations
 When and how long?  timing and duration, e.g. surveillance, some measures
cannot be done during the night
 Against whom?  certain measures can only be done against suspects, e.g. minors,
3rd parties
 For which crimes?  serious offence, or only available for offences when they are
committed in a certain way, e.g. cartels

WHAT TO LOOK FOR IN LEGISLATION?

 What is this measure for? – what can the authorities do with it?
 Personal scope – against whom can it be done?
 Material scope – for which offences?
 Authorization – how is it done? Do we need authorization? Does someone like a
judge to say ok to this measure? This can be either ex ante or ex post
 Length – how long should an investigative measure last?
 Urgent circumstances – what happens if there is no time for authorization?
 Other conditions for execution (e.g., special justification/ proportionality)

RIGHTS TO PRIVACY – ARTICLE 8 ECHR

ART.8(2) ECHR – gives the conditions under which investigative measures can exist
1. Interference by a public authority
a. Private life – when is it at stake? Whether the actions of the state interfere
with your private life
 Private life meaning= expectation of privacy for a reasonable person
 also, for business premises
(Buck, Niemitz)
 Interference by state
2. Has to be in accordance with the law
a. The lawfulness test (Quality of Law)
  is there a legal basis for what the police did?
 is it precise and foreseeable?
 has it adequate guarantees against abuse? (explains the duration of the
measure, judicial review, authorization etc); (e.g. Kruslin, P.G, K.S)
 were they executed lawfully?

3. Legitimate aim requirement: For national security, public safety, economic well-
being of the country, prevention of disorder or crime, protection of health morals,
rights and freedoms of others
a. Has it a legitimate aim?
4. Necessary in a democratic society(in criminal law this translates to subsidiarity and
proportionality) “pressing social need”
a. Proportionality test
b. Subsidiarity test – should be the last resort, whether alternative measures
were considered
 Different parameters depending on the circumstances and measure
(duration, the type of interference, evidence, use of evidence, seriousness of
the offence, manner of collection, effects on individuals), K.S. v Germany

(Do the whole test)

LAWFULNESS
The lawfulness test is an in abstracto control – we take the legal basis from the procedural
code and we check whether it is sufficiently clear and provides enough safeguards (u criticize
the national legislator, u just look at the law and say if they are an ok provision)
- You check the lawfulness by checking these-
 Existence of legal basis (whether there is a legal basis)
 Precision (not vague) (u have to be able to foresee police action/ foreseeability
requirement)
 Adequate guarantees against abuse
It depends on the type of interference (Kruslin)
 Lawfully executed? Did the police comply? (this is when we have a fantastic law but
the police ignored it)

NECESSARY IN A DEOMCRATIC SOCIETY

An in concreto control – we look at the specific characteristics at hand (the facts)
 Proportionality – is it proportional to the crime/the investigative purpose?
o Buck- “pressing social need”
o Buck – proportionality test factors
 Subsidiarity – is it the least intrusive?
o Could a less intrusive measure be used with equal effectiveness?
o In practice usually interlinked with proportionality
 Individualized
Lawfulness and proportionality interlinked!!

INTERCEPTION OF TELECOMMUNICATIONS
 INTERFERENCE – very serious as it captures the way your communications, your
private relationships; intrusive
 INVESTIGATIVE MEASURE – efficient and effective
 EVIDENCE – very strong

Inquisitorial system:
 Used as evidence with a strict legal framework
o We want it to be reliable

Adversarial system:
 Used as intelligence not evidence
o After 2000 started to get regulated
 Still inadmissible because of hearsay
 Art. 8 ECHR convictions - Halford v. UK

Abuses:
 NSA scandals
 Social media/search engines
 LAWFULNESS REQUIREMENTS ECHR for IoT
 Very serious interference – Uzun v. Germany
 National legal basis – Kruslin & Havig v. France
o Should mention the category of persons (e.g. suspect of…)
o Should speak the nature of offences
o Should mention the maximum duration
o The procedure that needs to be followed (e.g. prior judicial authorization)
o Report/record keeping and precautions (proper procedure for keeping the
recording the procedures, so they don’t get corrupted)
o The destruction of the records afterwards
o Independent supervision – how it should be supervised, maybe the court or
someone else;

 Dragojevic v Croatia
- Detailed reasoning on specific grounds related to the case and not stereotypical
abstract sentences.
- No ex post-facto “proportionality test”- practice per default;
- Judicial review of necessity before the court must relate to the aspects of art 8 and
not only art 9 (not only focus on the admissibility of evidence)
 Germany: Sections 100e and 100e GCCP

GERMANY: SURVEILLANCE
 Motivates by NSA scandals
 Explicit guarantees of private sphere and data protection
 New technologies
o Telecommunications – s.100a GCCP
o Online search – s.100b GCCP
o Acoustic surveillance of private premises – s.100c GCCP
o Other means (GPS, photos) – s.100h GCCP
o Mobile location data, s.100i GCCP

ENGLAND & WALES: RIPA 2000

 Problematic legislation
o Wide powers to many authorities
o Weak safeguards – no suspicion and no judicial supervision
o Many abuses – proportionality violations
 Snowden global surveillance

England and Wales: INVESTIGATORY POWERS ACT 2016 (IPA 2016)

  Investigatory Powers Act 2016- replaced previous horrible law
 Criminalized unlawful surveillance
 Judicial supervision introduced
 More powers
o Bulk hacking – to intercept the data of many people simultaneously
o Digital footprint monitored
o It did include supervision – judicial supervision

“Targeted interception warrants” – s.15(1)(a), (2)

 Requirements  s.17, 19(1), 20, 23, 24, 25, 32
1. Personal scope – s.17 a person, an organization or more person
2. Authorization by the Secretary of State (this is not a court, this is an
administrative authorization by the executive)
3. Has to be proportionate to the acquired intelligence (i.e. substantial evidence) –
s.19, 1b
4. Has to be necessary for preventing/detecting serious crime (offence of 3 years or
more for an adult, or violence, substantial financial gain, or relates to groups of
perpetrators with common purposes) – s.20
5. Authorization from a Judicial Commissioner (this is a different word for a court or
a judge) (double lock- two authorisations) – s.23
6. Subsidiarity(very strong element) – s.2(2)a,b

 So, what is the material scope?

 Elsewhere in IPA- offence of 3 years or more for an adult, or violence, substantial
financial gain, or relates to groups of perpetrators with common purposes

WHAT IN CASE OF URGENCY?

S.24 IPA – no authorization by judge needed
 After 3 working days (not only days but WORKING DAYS) needed (post facto judicial
review) In practice that’s why this urgency starts on Fridays so they can have 5
days (3 working days plus Saturday and Sunday)
o If denied: 5 working days life (s.25+32)
o What is urgency??- this is left for case law to determine
 General expiration date: 6 months (s.32)

SEARCH OF PREMISES
 Broadly interpreted by the ECHR (e.g. business) – Niemietz v. Germany
 Serious interference: haven of privacy
 The interference is done publicly and a very frequent measure (Buck v. Germany)
(different to telecommunication interference)
 Goal: to arrest you, to collect evidence (and/or seizure)
 If there is an arrest warrant = immediate right to search (and to seizure sometimes)
of premises (or vice versa?)
 For evidence/seizure: judicial authorization
  ECHR: judicial authorization also ex post (in the modestau case we saw that this has a
lot of exceptions)

GERMAN LAW: SEARCH OF PREMISES s. 102 StPO

 You need to be a suspect
 Of a criminal offence (any) (so it doesn’t have to be a serious offence)
 Can also be dwellings of third people (art. 103 StPO)
 Judicial authorization by a judge needed (warrant) (s.105 StPO)
o Or a warrant from the prosecution in emergencies
 Judge or public prosecutor, a municipal officer or two members of the municipality
must be present have to be present in the search.

 Criticism: not enough safeguards

 In “exigent circumstances”: in practice the rule
 Danger in delay: assumption of delay and loss of evidence
 police purposely avoid judicial authorization
Federal Constitutional Court:
o They need to proof the danger in delay
o Authorization also possible by phone
o Emergency judges – 24/7 available to give these orders

ENGLISH LAW: SEARCH OF PREMISES S.8 (AND S.15)PACE 1984

 Personal scope  any private premise can be searched
 Material scope  indictable offence* (section 8 (1))
o indictable offence are offences tried by the Crown Court (more serious
offences)
 Reasonable suspicion for material of substantial value to the investigation and it is
likely to be relevant evidence**
o Anything admissible to trial
 A warrant by a judge (Justice of the Peace) (Section 8 (1))
 The warrant must be specific especially if all premises are affected (s.8 (1A) and (1B)
PACE)
 Only when we can’t ask for consent or it wouldn’t be given, or the search would be
prejudiced (Section 8(3))

*Indictable offence: an offence tried by the Crown Court. Summary offences (less serious):
tried by Magistrates’ Court** Anything admissible to trial (Section 8 (4) PACE)
My notes:
Minimum safeguards that ECHR respects regarding article 8: accordance with the law,
necessary in a democratic society and legitimate aim.

1. It has to interfere with privacy to enter into the sphere of article 8 violation.
-> what is private life? -> expectation of privacy for reasonable person/ they do not put
a topographic limitation; it is when it is how a reasonable person sees the privacy.
(even if happens in public)
cases: BUCK, NIEMITZ
-> you need a prior authorization; the interference must be by state. Every evidence
collected by private persons, this is not considered to be a police work (not the
procedural law measure)

2. Lawfulness-> in abstracto control

-> the investigative measure has to be based in the law, there has to be a legal
provision (it has to be precise and foreseeable, has to be written, has to have a written
guarantee against the abuse)
-> this has to be executed lawfully
cases: KRUSLIN, P.G, K.S
->You look at the law, the law should have enough safeguards depending on the type
of interference;

3. Legitimate aim: the last lines in article 8 ECHR

4. Necessary in a democratic society-> in concreto, you look at this specific case

-> this means subsidiarity (ultima ratio) and proportionality
-> is this the last resort? (alternative measures)
-> is the measure proportional to the aim/ investigative purpose?
-> parameters depending on circumstances and measure (proportionality): duration,
type of interference, evidence, use of evidence, seriousness of offense, manner of
collection, effects on individuals. (these parameters can be lawful however they can be
extremely disproportionate)
->lawfulness and proportionally are interlinked -> however, you test different things
Case: K.S v Germany
-> YOU NEED TO DO THE WHOLE TEST

AFTER THAT YOU CAN SEE IF ARTICLE 8 ECHR has been breached or not.
Lawfulness house searches: (Modestou v Greece)

Judicial authorization:
 The warrant must be really specific
 Scope of search, justifications of search: minimum number of indications

If no prior judicial authorization (urgent matters) or if impossible to be too accurate:

Example 1: Additional off-setting guarantees are required: e.g., immediately ex post

facto judicial control which must be EFFECTIVE in addressing the reasons and
justifications of the search.

Example 2: Presence of affected person during the search in conjunction with clear
indication of limits of warrant, presence of prosecutor, presence of third persons etc.
 Combination of the above, case by case basis.

How national legislation should look like when the police are allowed to intercept the
telecommunications.
 KRUSLIN & HUVIG v France: the national legislation has to have the
following elements:
1. Category of persons
2. Nature of offences
3. Maximum duration
4. Procedure followed (prior judicial authorization)
5. Record/report keeping and precautions-> a proper procedure to keep records,
the procedure is transparent, the records are truthful not corrupted
6. Destruction of records
7. Independent supervision

The case that deals with these aspects: Dragojevic v Croatia:

 The way that the law applied, the courts created a de facto situation, they gave a
warrant for interception of telecommunications, but they never specified the
reasons why they gave a warrant
 In national law, often there are article 8 violations ECHR, usually they are
addressed as excluding evidence;