This is the second of two posts on the case from the European Court of Human Rights, Shalyavski v Bulgaria (App no. 67608/11) 15.6.17, concerning breaches of article 3 and 8. This second one concerns a finding that the police’s visiting of a person’s home whist they were under house arrest, sometimes up to five times a day, was not a breach of articles 3 or 8.

The facts behind the case are mentioned in the previous article here. The First Claimant was charged with criminal offences concerning the lending of money at high rates of interest and, on 7th April 2011, was placed under house arrest. The First Claimant lived with his partner and two children, one of whom was eight years old, all of whom were the other Claimants.

In the first week following the imposition of the house arrest, the police conducted no checks on whether the Claimant was complying it. On 15th April 2011, however, police officers saw him in the city centre, in breach of it. In the subsequent six weeks, police officers visited his home once a day, almost every day. On 1st and 2nd June 2011, the First Claimant's partner would not allow police into the home - to check if the First Claimant was there. On 3rd June 2011, the police made five visits, of which one was unanswered. Between 4th – 20th June 2011, the police visited usually three or four times a day. On 21st June 2011, the house arrest ended.

The Claimants contended that this level of interference was a severe intrusion for all family members and a breach of articles 3 and 8. For the government, it was contended that the police visits were necessary to secure the First Claimant’s compliance with the house arrest, as on several occasions he had left his home without authorisation. 

The court found that this level of visits did not breach articles 3 or 8 for the following reasons:

- It was not disputed that the visits were in accordance with the law, as domestic law authorised the police to take measures to secure compliance with house arrest [78].

- The issue was whether the interference was necessary and proportionate. Despite the number of visits, these were to verify quickly whether the First Claimant was present. There was no other disturbance to the Claimants’ daily lives [80].

- The police never visited during the night and they never attempted to force their way in [80]. Further, the eight-year child was often at school when the police attended during weekdays [82].

- On two occasions, on 15th and 29th April 2011, the First Claimant had left his home without authorisation. Prior to the First Claimant’s first leaving, there had been no checks prior to the First Claimant’s being seen in the city centre on 15th April 2011 [81].

- The court would not speculate on whether it was feasible or practical for the police to organise surveillance or monitoring of the First Claimant’s home, instead. It had been contended that this was impossible given limited resources [83].

Much weight, the court used the words “considerable weight”, was placed on the fact that the increased number of visits were performed after the First Claimant had been seen outside his home, in breach of the house arrest. This comes close to a justification of the visits rather than a consideration of whether that number of visits amounted to a breach of article 3 regardless.

Perhaps the court may have considered that although such a high number of visits might have been degrading for a person who had otherwise complied with the house arrest, it was not for a person who flouted it. Still, there were claimants other than the First Claimant who were affected by the visits. The court engaged in no separate consideration of whether this amounted to a breach of article 8 or whether it would have done had the First Claimant not been seen outside his home.

For police officers, the decision should not be seen as a justification for an intrusive level of visits in relation to, for example, a person subject to a bail curfew or behaviour injunction where there is no suspicion of its breach (if the police had the resources to perform such checks). It does, however, perhaps as a matter of common sense, suggest that quite a high level of checks may not breach the Convention where there is good reason for believing (perhaps more than suspecting) that a person is breaching it - even if infrequently.