36
Human Rights in Counter-Terrorism Investigations
About half an hour later, all three men leave together and drive away in Y’s car.
The surveillance team follows them, but one of the team stays behind and, using
a skeleton key, enters X’s home and places a listening device in the room where
the three men had been, believing that this will be useful during any future
meetings the men may have.
Question: Does the police surveillance operation unlawfully interfere with
the suspects’ right to private and family life?
The use of registered informants is a police tool frequently necessary in cases
of serious crimes. Informants, when tasked by the police, frequently invade the
privacy of people they are asked to collect information about. Therefore, the
use of informants is strictly regulated and supervised. Their use is only permitted in cases of serious crimes – sometimes described in national criminal
procedure codes – and with carefully selected and trained informant handlers.
Another important good practice when using informants is a strict separation
between the informant handler and the investigation. The decision to use an
informant requires either the permission of a specially selected senior officer
in dangerous protection cases or the permission of a judge in criminal cases.
Taking information from members of the public about suspicious behaviour of
neighbors is, at most, a low-level invasion of their privacy. This is basic police
work and does not require special permission.
Also, discreetly asking questions of neighbours and other members of the public
can be considered basic police work and open intelligence gathering for which
no special permission is needed. The police officer in uniform and on his beat
following X for a short time is also a low-level infringement of X´s privacy for
which no special permission is needed.
The office-based identification of suspects can interfere with the privacy of
those under scrutiny. It can only respect human rights when it is done by agents
of a specialized unit. Results must be presented to a senior officer in charge or
a prosecutor, who decides whether or not the material leads to an investigation.
The initial surveillance of the two men and their meeting outside the bank is
the start of the long-term activity, including technical support. The seriousness of the suspected crime they are believed to be plotting justifies the action.
However, domestic legislation should require judicial authorization for long-term
surveillance with technical support.
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