Privacy and Phone-Tapping: The Price of Justice in the European Union

Abstract

Phone tapping has been an evolving issue concerning the protection of the right of privacy under Article 8 of the European Convention on Human Rights. In several cases, namely Klass, Malone and Kruslin&Huvig, the European Court of Human Rights did set up a number of requirements that national legislations must comply with concerning the admissibility of telephone-tapping as an important tool of criminal procedure, since it is understood as an infringement of the right of privacy provided by Article 8 of the ECHR, despite its wording. Moreover, the Court did also establish the requirements for the use illegally collected evidence (i.e. evidence collected without compliance of phone-tapping requirements), which are different from the American exclusionary rules (“Miranda's Rights” Doctrine) and the German «Beweisverbote» (the BGH «evaluation of interests» Criteria and the Doctrine of the “three spheres of privacy”). At the same time, in case Schenk, the European Court of Human Rights (ECHR) seemed to reject a strict application of the doctrine of the "fruit of the poisonous tree" (US Supreme Court) and the BGH “Fernwirkung” criteria. This paper, originally drafted for European Criminal Law at the Catholic University of Leuven as Erasmus student, questions whether the impact of the ECHR’s case-law on national legislation of Member States is not leading towards a Uniform European Criminal Law.