Balancing security and liberty within the European human rights framework. A critical reading of the Court’s case law in the light of surveillance and criminal law enforcement strategies after 9/11

Literature concerning human rights protection by the European Court on Human Rights after 9/11 is very often coloured by optimism. Some authors hold that judicial control by the European Court on national anti-terrorism measures is very strict, especially compared to U.S. judicial review. Others suggest the existence of a strict privacy test developed by the European Court as a bulwark again anti-terrorism measures that give too much discretion to law enforcement authorities. In this paper we discuss the ‘classical’ European framework with regard to ‘hard’ anti-terrorism measures and the privacy framework that is relevant for new, ‘softer’ anti-terrorism measures. it is argued that this optimistic reading of the European human rights framework in the area of security especially with regard to the latter is flawed and based on a misunderstanding of the case law of the European Court. This analysis leaves little room for optimism about judicial review of the legislator in Europe and urges for an attitude of self-restraint.