論通訊之監察－評析歐洲人權法院相關裁判之發展與影響

Interception of Communications-Critiques on Judgments of European Court of Human Rights

林鈺雄(Yu-Hsiung Lin)

《東吳法律學報》 19卷4期 (2008/04) Pp. 109-152

https://doi.org/10.6416/SLR.200804.0109

並列摘要

With the development of communication technology, the equipment of surveillance used by prosecutors penetrates more seriously and deeply into the private life of everyone. The dependence on the technological measure has changed the schema of fundamental rights. How to legitimately restrain public authorities from supervising on communication, prevent them form abusing and find out a reasonable scope of infringement have become main topics in the field of international human rights.
This essay starts from the Article 8 of European Convention on Human Rights which stipulates the protection of privacy, analyzes the interaction between the laws on communication surveillance of European countries, and observes the deep influence on the common standard with respect to the adoption of surveillance measure between European countries on the basis of cases relative to communication surveillance and judged by ECHR (European Court of Human Rights).
In general, due to the development of technology of communication surveillance, our privacy is exposed to the danger of being infringed without limits and this situation is unprecedented. However, a high-level examination standard adopted by ECHR pulls it back to the right track: it means the infringement shall be limited.
These precious experiences will be good examples for our reference. For example, communication records shall be protected by the freedom of secret communication, and there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society. Public authorities shall not avoid the application of law reservation on the excuse of the consent by one party of people who are under communication surveillance. The production of verbal version of recorded communication shall be strictly and precisely regulated, etc.
Last but not least, the two most essential concepts are the ex post factor examination and the appealing procedure employed by courts to avoid any kind of abuse. Although the people under surveillance can not be aware of the measure or take some preventive means in advance, safeguards against arbitrariness shall still be provided by the public authorities to the people who were under surveillance.

並列關鍵字

Communication surveillance ； tapping ； Privacy ； Principle of law reservation ； Principle of proportionality ； European Court of Human Rights

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