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FOURTH
SECTION
CASE OF
KVASNICA v. SLOVAKIA
(Application
no. 72094/01)
JUDGMENT
STRASBOURG
9 June
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kvasnica v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas
Bratza,
President,
Lech
Garlicki,
Ljiljana
Mijović,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Mihai
Poalelungi,
judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 16 April 2009 and 19 May 2009,
Delivers
the following judgment, which was adopted on the latter date:
PROCEDURE
- The
case originated in an application (no. 72094/01) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovakian national, Mr Roman Kvasnica (“the
applicant”), on 11 July 2001.
- The
applicant was represented by Mr J. Drgonec, a lawyer practising in
Bratislava. The Slovak Government (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
- The
applicant alleged, in particular, that his telephone communications
had been interfered with in breach of Article 8 of the Convention.
- By
a decision of 26 September 2006 the Court declared the application
partly admissible.
- The
applicant and the Government each submitted further written
observations (Rule 59 § 1). The Chamber having decided, after
consulting the parties, that no hearing on the merits was required
(Rule 59 § 3 in fine), the parties replied in writing to
each other's observations.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1962 and lives in Piešťany.
A. Factual background
- The
applicant is a lawyer. He used to be a public prosecutor and is now
a practising member of the Slovak bar association.
- Between
August 1999 and March 2001 the applicant acted as the legal
representative of several industrial companies belonging to a group
associated with a strategic steelworks in eastern Slovakia. For a
period of time starting on 18 April 2001 he was on the board of
directors of the company owning the works.
- In
1999 the Minister of the Interior set up a special team of
investigators to investigate large-scale organised criminal
activities of a financial nature which were supposedly being
committed in connection with a company belonging to the above group.
The team was composed of officers from the financial police.
- On
an unspecified date the investigators charged an individual, I.C.,
with aggravated fraud.
B. Interference with the applicant's telephone
communications
- On
an unspecified date the investigators applied for judicial
authorisation to tap the applicant's telephone. At an unspecified
time a judge of the Bratislava Regional Court granted the
authorisation. The applicant's professional mobile phone was
subsequently tapped.
- In
November 2000 the applicant learned that calls from his phone were
being intercepted; that the interception was being carried out by the
financial police; and that the contents of his telephone
communications were known outside the police.
- On
5 January 2001 the applicant received an anonymous letter confirming
the above information and advising him that the interception had
taken place from October to December 2000 and had been carried out at
the request of opponents of his clients.
- On
31 May 2001 and 1 June 2001 a daily paper published interviews with
the Minister of the Interior and the chief of the Police Corps. From
those interviews the applicant understood that there had been
confirmation that the interception had actually taken place.
- Verbatim
records of the applicant's calls had been leaked to various interest
groups, politicians and journalists, as well as to representatives of
several legal persons.
- Thus
in September 2001 the daily Sme received by mail a transcript
of the applicant's telephone conversation with a journalist of Radio
Free Europe. On 13 October 2001 Sme published a statement
by a politician who had declared at a press conference that he
possessed approximately 300 pages of copies of transcripts of the
applicant's telephone conversations.
- In
summer 2002 the applicant was informed that verbatim records of his
conversations with third persons which had been made by the financial
police were freely accessible on a website. They included
conversations with his colleagues, clients, the representative of the
other party in a case, and friends. The records had been manipulated
in that they included statements which the applicant and the other
persons involved had not made.
C. Investigation of the interference with the
applicant's telephone communications
1. Complaints by the applicant and a police director
- On
15 and 29 January 2001 the applicant informed the Inspection Service
of the Ministry of the Interior (“the Inspection Service”)
that he had been warned in a letter signed “member of the
Financial Police” about the interception of his telephone. He
claimed that the interception was unlawful and unjustified and
accused one or more unknown police officers of having abused their
official authority. The applicant stated that an appropriate
investigation should be carried out into the matter in accordance
with the law.
- The
director of the special division of the financial and criminal police
(odbor zvláštnych úloh správy
kriminálnej a finančnej polície) lodged a
criminal complaint as, on the basis of his own examination of the
case file, he had come to the conclusion that the interception
contravened sections 36 and 37 (1) of the Police Corps Act 1993 (see
Relevant domestic law and practice below). This was so in particular
because it had not been based on any specific suspicion against the
person being targeted and no specific purpose had been indicated. In
his view, the members of the special investigative team had abused
their official authority within the meaning of Article 158 of the
Criminal Code.
- On
10 May 2001 the judge who had authorised the interception made
a written statement to the President of the Regional Court. The
judge stated that the request for the authorisation had met all
formal and substantive requirements. In his view, the police director
had no authority to challenge the authorisation. The judge therefore
considered it inappropriate to address the substance of the
director's objections. He nevertheless remarked, in general, that
requests for authorisation were made in writing, but were submitted
in person. The officer submitting the request had presented the case
orally and the oral presentation was usually more comprehensive than
the written request. As requests for authorisation had to be handled
with the utmost urgency, judges had had no realistic opportunity to
examine the case file or to check that the request for authorisation
corresponded to the contents of the case file. Furthermore, the
information in the case file was often obtained from unverifiable
sources. Judges therefore had to rely on the information in the
request for authorisation, which presupposed a certain element of
trust. The judge further observed that there had been an enormous
increase in the workload concerning tapping and that this was due,
inter alia, to an inter agency agreement which had been
reached under the auspices of the Ministry of Justice (see Relevant
domestic law and practice below) and had extended the jurisdiction of
the Bratislava Regional Court in this area. In his view, questions of
jurisdiction should not be regulated by “agreements” but
by statute, which was not the case in relation to tapping. The judge
stated that telephone tapping had been authorised on three previous
occasions in the course of the investigation into the suspected
extensive criminal transactions within the industrial group mentioned
above. He had thus had sufficient and detailed knowledge about the
applicant's case. The judge associated himself completely with the
decision taken, although the suspicion against the applicant might
later have been dispelled. This was nothing unusual and happened in
10-20% of cases.
- On
22 May 2001 the applicant asked the General Prosecutor to take
measures with a view to eliminating unlawful interception and
recording of telephone conversations.
- On
20 June 2001 the Inspection Service questioned the applicant in
connection with his complaint. According to the applicant, since then
there has been no official communication concerning his complaint and
he has not been informed of the outcome of the investigation.
- On
21 June and 2 July 2001 the Inspection Service requested that the
Ministry of the Interior discharge members of the special
investigative team from the obligation of confidentiality in respect
of the subject matter of the investigation. The Ministry agreed on 9
and 10 July 2001 respectively.
-
On 31 August 2001 the General Prosecutor's Office informed the
applicant, in reply to his above request of 22 May 2001, that the
framework for the interference was defined by Article 22 § 2 of
the Constitution and the relevant statutory provisions including the
Police Corps Act 1993. Decree no. 66/1992 defined the court's
jurisdiction in such matters in cases where criminal proceedings had
not been brought. The fact that the relevant issue was not governed
by a law was only a formal shortcoming. Moreover, a draft law had
been prepared to cover the relevant issue.
- Between
5 and 20 September 2001 the Inspection Service questioned four
members of the investigative team. Their depositions included, inter
alia, the information that the operative part of the team had
been colluding with the applicant; that the applicant had been in
close contact with I.C. (see paragraph 10 above); that the applicant
had been involved in several contractual transactions within the
group, which had eventually harmed the interests of the steelworks;
that the request for authorisation to tap the applicant's phone had
been based on the suspicion that he had committed the offences of
aggravated fraud (Article 250 of the Criminal Code) and money
laundering (Article 255 of the Criminal Code); that the request had
been drafted without consultation of the case file; that the
interception had been necessary because it had not been possible to
move the investigation forward without it; and that after the
interception had been compromised the case file had been made
available to various officials, including the Minister of Justice,
who at that time also acted as the Minister of the Interior ad
interim.
- On
21 September 2001 the Inspection Service dismissed the criminal
complaint by the police director. It noted that a “committee of
experts specialising in operational tasks” had been set up and
“had detected no breach of the applicable regulations”.
The interception had been authorised by a judge and had thus
been lawful. There was no basis for scrutinising the judge's
decision. In conclusion, there was no case to answer. The decision
has never been served on the applicant.
- According
to the applicant, he had lodged some ten criminal complaints between
2001 and 2003 about the interception of his telephone conversations
and mishandling of the verbatim records. Without submitting further
details the applicant indicated that those complaints had been
rejected without an appropriate examination of the facts.
2. Complaint by chief editor of Sme
- The
chief editor of the daily Sme filed a criminal complaint after
receipt of a transcription of the applicant's telephone conversation
with a journalist of Radio Free Europe. In the context of the
proceedings a journalist of Sme was heard. On 14 November 2001
the police also heard the politician who had stated that he possessed
300 pages of copies of transcripts of the applicant's telephone
conversations. The applicant was involved in the proceedings as the
injured party.
- The
parties have not informed the Court about the outcome of the
proceedings.
3. Complaint by police officer B.
- In
2003 lieutenant colonel B., attached to the Inspection Service's
department specialised in combating corruption and organised crime,
contacted the applicant and informed him that there was a general
order within the Police Corps to reject all the applicant's
complaints. The police officer had been obliged to leave the police
after he had started criminal proceedings upon one of the applicant's
complaints. In February and March 2003 that officer had complained to
the Bratislava Higher Military Prosecutor's office and to the General
Prosecutor's office about abuse of authority in the context of
examination of the applicant's complaints.
- The
Government submitted a standpoint of the General Prosecutor dated 8
February 2007. It indicates that the above decision of the Inspection
Service of 21 September 2001 had been taken in accordance with the
law. As to the criminal complaints which officer B. had lodged in
2003, an investigator had set the case aside, on 19 July 2006, on the
ground that no offence had been committed in the context of
examination of the applicant's complaints. Finally, reference was
made to the reply which the General Prosecutor's Office had sent to
the applicant on 31 August 2001.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Constitutional Law no. 460/1992
Coll., as applicable at the relevant time) and practice of the
Constitutional Court
- Pursuant
to Article 19, everybody has the right to protection against
unjustified interference with his or her private and family life (§
2) and against the unjustified collection, publication or other
misuse of personal data (§ 3).
- Article
22 guarantees the secrecy of correspondence, other communications and
written messages delivered by post, and of personal information (§
1). The privacy of letters, other communications and written messages
kept privately or delivered by post or otherwise, including
communications made by telephone, telegraph and other means, cannot
be violated by anyone except in cases specified by law (§ 2).
- In
proceedings no. II. ÚS 254/03 an
individual alleged, inter alia, a breach of Article 8 of the
Convention in that his telephone had been tapped unlawfully. On 17
December 2003 the Constitutional Court dismissed the complaint as
being manifestly ill-founded. It established that the interception
had been authorised by a regional court judge in accordance with the
relevant provisions of the Police Corps Act 1993.
- In
proceedings no. I. ÚS 274/05
(judgment of 14 June 2006) the Constitutional Court found a breach of
an individual's rights under Article 8 of the Convention on the
ground that, contrary to the statutory requirement, two judicial
decisions to authorise the interception of the plaintiff's telephone
contained no specific reasons justifying the interference.
B. Code of Criminal Procedure (Law no. 141/1961 Coll.,
as in force at the relevant time)
- The
Code distinguishes between the procedure before the formal
institution (commencement) of a criminal prosecution, which is
governed by the provisions of Chapter 9, the procedure after the
commencement of the prosecution but before the filing of the bill of
indictment, known as the “preliminary proceedings” and
governed by the provisions of Chapter 10, and the procedure in court
which begins with the filing of the indictment and is governed by the
provisions of Chapter 11.
- The
procedure before the institution of a criminal prosecution
encompasses receiving and verifying information, obtaining
documentation and explanations and securing evidence with a view to
determining whether a criminal offence has been committed and
whether it is justified to bring a formal prosecution in
connection with it. As a general rule, eavesdropping and interception
is not allowed at this stage of the proceedings (Article 158 §
4) unless such measures cannot be postponed or repeated within the
meaning of Article 158 § 6.
- The
procedure before the commencement of a criminal prosecution ends with
a formal decision either not to accept the criminal complaint
(Article 158 § 2), or to refer the matter to the relevant
authority dealing with minor offences or disciplinary or other
matters (Article 159 § 1), or to refuse to take action (Article
159 §§ 1, 2 and 3), or to institute formal criminal
proceedings (Article 160).
- The
scope of the jurisdiction and competence of criminal courts is
defined in section 1 of Chapter 2. Proceedings at first instance are
to be conducted before a district court unless the law provides
otherwise (Article 16).
C. Police Corps Act 1993 (Law no. 171/1993 Coll., as in
force at the relevant time)
- The
Act governs the organisation and powers of the police. Section 2 (1)
defines the tasks of the police. These include serving (a) to protect
fundamental rights and freedoms, life, health, personal safety and
property; (b) to detect criminal offences and to identify the
culprits; (c) to detect illegal financial operations and money
laundering; (d) to investigate criminal offences and to examine
criminal complaints; and (e) to combat terrorism and organised crime.
The provisions relevant in the present case read as follows:
“Information technology devices
Section 35
For the purpose of this Act information technology
devices are, in particular, electro-technical, radio-technical,
photo-technical, optical and other means and devices or their
combinations secretly used for
a) search for, opening and examination of consignments
and their evaluation while using forensic methods,
b) interception and recording of telecommunications,
c) obtaining image, sound or other recordings.
Section 36
1. The Police Corps is entitled to use information
technology devices when complying with its tasks in the fight against
terrorism, money laundering in the context of the most serious forms
of criminal activities, in particular organised crime, ... tax
evasion and unlawful financial operations, ... The preceding
provision does not apply to contacts between an accused person and
his or her defence counsel.
2. The Police Corps can use information technology
devices also in respect of criminal activities other than those
mentioned in sub-section 1 subject to the agreement of the person
whose rights and freedoms will thereby be interfered with.
Conditions of use of information technology devices
Section 37
1. The Police Corps can use information technology
devices only where the use of other means would render the
investigation of criminal activities mentioned in section 36,
identification of their perpetrators or securing evidence necessary
for the purpose of criminal proceedings ineffective or considerably
difficult.
2. Information technology devices can only be used
subject to a prior written consent of a judge and for a period
strictly necessary which however cannot exceed six months. That
period starts running on the day when such consent has been given.
3. The judge who approved of use of information
technology devices can, on the basis of a fresh request, extend the
period, but for no longer than six months each time.
4. In exceptional cases, where no delay is possible and
a written consent of a judge cannot be obtained, information
technology devices can be used without such consent. However, the
Police Corps must apply for a written approval by a judge without
delay. If such consent is not given within 24 hours from the moment
when the use of devices started or if the judge refuses to give his
or her consent, the Police Corps must put an end to the use of
information technology devices. Information thus obtained cannot be
used by the Police Corps and they must be destroyed in the presence
of the judge competent to decide on the request.
5. The Police Corps shall submit a request for approval
of the use of information technology devices to a judge in writing;
it must contain data about the person concerned, specify the device
to be used, place, duration and reasons for its use.
6. The judge who gave consent to the use of information
technology devices must examine on a continuous basis whether the
reasons for their use persist; where such reasons no longer exist,
the judge is obliged to immediately order that the use of the devices
be stopped.
7. The Police Corps can use information technology
devices without prior consent of a judge ... where the person whose
rights and freedoms are to be interfered with has consented to such
in writing...
Section 38
1. When using information technology devices the Police
Corps must constantly examine whether the reasons for such use
persist. Where those reasons are no longer valid, the Police Corps
must immediately put an end to the use of an information technology
device.
2. The Police Corps must inform the judge who gave
consent to the use of information technology devices of the
termination of such use.
3. Information obtained by means of information
technology devices can be used exclusively for attaining the aim set
out in section 36.
4. The use of information technology devices can
restrict the inviolability of one's home, the privacy of
correspondence and the privacy of information communicated only to
the extent that it is indispensable.
5. Information obtained by means of information
technology devices can exceptionally be used as evidence, namely
where such information constitutes the only proof indicating that a
criminal offence listed in section 36 was committed by a specific
person and where such proof cannot be obtained by other means. In
such case the relevant recording must be accompanied by minutes
indicating the place, time, means and contents of the recording and
the reason for which it was made.”
- Section
69 deals with police information systems and databases. The police
are entitled to set up and operate information systems and databases
containing information about persons and facts which are relevant for
their work (subsection 1). The police have the duty to protect the
data stored in such systems from disclosure, abuse, damage and
destruction (subsection 2). If the data are no longer needed,
they must be destroyed or stored so that they are not accessible to
anyone except a court (subsection 3).
D. Privacy Protection Act 2003
- Sections
35, 36(2), 37 and 38 of the Police Corps Act 1993 were repealed by
Act 166/2003 Coll. on Protection of Privacy against Unjustified Use
of Information Technology Devices (“Privacy Protection Act
2003”) which entered into force on 21 May 2003.
- The
Act governs the use of information technology devices without the
prior consent of the person concerned. It does not extend to the use
of such devices in the context of criminal proceedings which is
governed by the Code of Criminal Procedure (section 1).
- Section
2 defines the authorities entitled to use such devices (Police Corps,
Slovak Intelligence Service, Military Intelligence Service, Railways
Police, Corps of Prison and Justice Guards and Customs
Administration). The devices used must be secured against tampering.
Personnel involved in using the devices must undergo a lie-detector
test at intervals fixed by the head of the authority concerned.
- Section
3 allows for use of information technology devices only where it is
necessary in a democratic society for ensuring the safety or defence
of the State, prevention or investigation of crime or for the
protection of the rights and freedoms of others. The information thus
obtained cannot be used for purposes other than one of those
enumerated above.
- Pursuant
to section 4, such devices can be used subject to prior approval by a
judge within whose jurisdiction the case falls. Their use should be
limited to a period which is strictly necessary and it should not
exceed six months unless the judge grants an extension. The judge
involved is obliged to examine on a continuing basis whether the
reasons for the use of such devices persist.
- In
exceptional cases specified in section 5 the police can use the
devices without the prior consent of a judge. In such cases, the
judge must be notified within one hour after the use of the devices
has started and a request for authorisation of such use must be
submitted within 6 hours. In case of disapproval by the judge of
such interference the data obtained must be destroyed.
- Sections
7 and 8 govern the use and disposal of data obtained and the
liability of the State in case of failure by the authorities
concerned to comply with the law.
- Pursuant
to section 9 the National Council of the Slovak Republic (the
Parliament) shall examine at its plenary meeting, twice a year, a
report of its committee set up for the purpose of supervising the use
of information technology devices. The report must indicate any
unlawful use of the devices established. The report can be made
available to the media. The authorities entitled to use information
technology devices must make available to the above committee all
relevant information within ten working days following the
committee's request.
E. Decree of the Minister of
Justice on the Rules of Procedure before District Courts and
Regional Courts (Decree no. 66/1992 Coll.)
- The
decree was issued, inter alia, pursuant to Article 391a §
2 of the Code of Criminal Procedure, which authorised the Minister of
Justice to lay down further details of the procedure before district
courts and regional courts “in dealing with criminal matters”.
- Section
45 (1) obliged the presidents of each regional court to assign one
judge to deal with matters concerning use of information technology
devices.
- The
decree of 1992 was repealed by Decree no. 543/2005 with effect from 1
January 2006.
F. Other regulations
- On
29 March 2000 a conference took place under the auspices of the
Ministry of Justice. Representatives of the Ministry, the regional
courts, the head office of the police and the office of the
Prosecutor General took part. The participants agreed that matters
concerning authorisation of wiretapping would be handled by the
regional court in the judicial district in which the agency
requesting it had its seat.
G. Amendment no. 185/2002 Coll. to the Courts and
Judges Act (Law no. 335/1991 Coll.)
- The
amendment entered into force on 16 April 2002. It introduced, inter
alia, subsections 2 and 3 to section 13 of the Courts and Judges
Act. They provide that, as a general rule, authorisation for
monitoring telecommunications falls within the jurisdiction of the
regional courts. Territorial competence is conferred on the regional
court in the judicial district in which the authority seeking the
authorisation has its seat.
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AND THE SCOPE OF
THE CASE
- At
the admissibility stage the Government objected that the applicant
had not exhausted domestic remedies as he had not raised his
complaint under Article 8 by way of an action for protection of his
personal integrity.
- On
26 September 2006 the Court dismissed that objection and declared
admissible the complaint under Article 8 of the Convention concerning
the interference with the applicant's telephone communications. The
Court noted that in his reply to the observations submitted by the
Government the applicant claimed that the interference had consisted
not only in tapping his phone, but also in recording his phone calls,
making transcripts and copies of the recordings and making the
obtained information available to third parties. In that respect it
invited the parties to submit information whether, apart from the
tapping of the applicant's telephone, there had been other
interference with his rights under Article 8.
- The
Government then raised a new objection, arguing that the applicant
could have sought redress by means of a complaint under Article 127 §
1 of the Constitution enacted with effect from 1 January 2002. They
relied on the Constitutional Court's decisions II. ÚS
254/03 and I. ÚS 274/05 delivered
in 2003 and 2006 (see paragraphs 34 and 35 above). In a complaint to
the Constitutional Court the applicant should have relied on his
argument that he had officially learned about the interception from
the Government's observations submitted on the present case on 25
June 2005.
- As
to the allegedly unlawful use of the transcripts of the
conversations, their copying and distribution, in the Government's
view the applicant could have sought redress by means of an action
under Articles 11 et seq. of the Civil Code for protection of his
integrity and, ultimately, before the Constitutional Court.
- The
applicant disagreed. He argued, inter alia, that he had
introduced his application on 11 July 2001 and that no effective
remedy before the Constitutional Court had been available at that
time. He could not have obtained redress before the Constitutional
Court.
- The
Court first notes that the Government did not raise at the
admissibility stage the argument that the applicant should have
sought redress before the Constitutional Court as regards the
interception of his telephone. In any event, the Court
reiterates that the assessment of whether domestic remedies have been
exhausted is normally carried out with reference to the date on which
the application was lodged with it (see Baumann v. France, no.
33592/96, § 47, 22 May 2001). It concurs with the applicant that
at the time of introduction of the application he had been unable to
effectively seek redress before the Constitutional Court (for
recapitulation of the relevant domestic law see, for example, Poláčik
v. Slovakia, no. 58707/00, §§ 33-35, 15 November 2005).
Accordingly, the Government's objection must be dismissed to the
extent that it concerns the interception of the applicant's
telephone, including the alleged shortcomings in the legislation on
which it had been based.
- As
regards the alleged interference resulting from misuse and rendering
public the contents of the records, the Court notes that the
applicant explicitly referred to it in his reply to the Government's
observations, which was submitted to the Court on 6 September 2005.
He submitted the relevant documents and arguments to substantiate
that complaint on 22 November 2006, after the decision on the
admissibility of the application had been adopted and in reply to
questions put by the Court.
- Those
documents indicate that the relevant part of the application concerns
specific events which occurred after the introduction of the
application and which were being investigated subsequently (see
paragraphs 16-17 and 27-28 above). In the above circumstances, the
applicant's complaint about those events and any shortcomings in the
related domestic procedure must be considered as having been
introduced on 6 September 2005, when the applicant for the
first time made a specific reference to them before the Court.
- The
Court concurs with the Government that prior to submitting that
complaint to the Court the applicant should have sought redress,
after having used the other remedies available, by means of a
complaint pursuant to Article 127 § 1 of the Constitution
enacted with effect from 1 January 2002.
- It
follows that the complaint of misuse of the records of the
applicant's telephone conversations must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
- Accordingly,
the Court's examination in the context of the present application
will be limited to the interception of the applicant's telephone
conversations.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the interference with his telephone
communications had been contrary to Article 8 of the Convention,
which, in so far as relevant, provides:
“1. Everyone has the right to respect
for his private ... life, ... and his correspondence.
2. 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 in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The arguments of the parties
1. The applicant
- The
applicant emphasised that he had not committed any criminal or other
offence and had never been charged. There could not have been any
legitimate reason for interfering with his phone calls. There was no
evidence showing that the request for authorisation of the
interception had complied with applicable requirements.
- The
judge who had authorised the interception of his phone had
acknowledged that there had been a lack of legal rules concerning the
territorial competence of regional courts in matters concerning
wiretapping. The rules contained in Decree no. 66/1992 Coll. did not
apply to wiretapping under the Police Corps Act, and the Minister of
Justice who had issued that Decree had had no legislative power to
make rules relating to that Act. Furthermore, the rules adopted at
the Ministry of Justice conference on 29 March 2000 did not have the
form and quality of “law”, inter alia, because
they lacked the element of public accessibility.
- The
quality of the legal framework existing at the relevant time had not
been sufficient in that it had not afforded the applicant adequate
and effective safeguards against abuse. In particular, he had been
completely excluded from the decision-making process concerning the
interception of his phone calls; he had had no remedies in respect of
it; and there had been no mechanism for independent scrutiny of the
interception under the Police Corps Act 1993. Although the
interception required the consent of a judge and the judge had the
duty to examine on a continuous basis whether the grounds for it
persisted, neither the judge nor the Inspection Service had any means
of checking how the interception was being carried out in practice.
- Finally,
the applicant underlined that there had been no safeguards
to identify telephone calls between him as a lawyer and criminal
defendants as his clients.
2. The Government
- The
Government admitted that the applicant's phone had been tapped and
that this amounted to an interference with his rights under
Article 8 of the Convention.
- In
their observations submitted at the admissibility stage the
Government argued that the interference had been lawful and
justified. In particular, the interception had been carried out under
the Police Corps Act 1993 and had been duly authorised by the
appropriate judge. The matter fell within the jurisdiction of the
regional courts on the basis of Ministerial Decree no. 66/1992 Coll.
The fact that there was no written legal rule as to which specific
regional court had territorial jurisdiction in the matter had no
impact on the effectiveness and independence of the judicial
supervision that had been carried out in the applicant's case. The
legality of the interception had been examined and upheld by the
Inspection Service.
- There
had been an extensive investigation of criminal activities within the
industrial group with which the applicant had then been associated.
He had been seeking inside information about the investigation and
had been in active communication with I.C., who had been charged with
an “extremely serious criminal offence”. It had been
necessary to tap his phone in the interests of conducting an
effective investigation.
- The
Government further submitted that there had been a system of
effective control in place in order to prevent abuse and that the
applicant had had the full benefit of that system.
- In
the post-admissibility submissions, in reply to specific questions
put by the Court, the Government's Agent explained that the relevant
documents were classified and that the law in force did not permit
her to obtain them and to submit them to the Court. For that reason
the Government's Agent was not in a position to comment specifically
on the merits of the case. Legislative change was envisaged with a
view to preventing similar situations from recurring.
B. The Court's assessment
1. The general principles
- Telephone
conversations are covered by the notions of “private life”
and “correspondence” within the meaning of Article 8.
Their monitoring amounts to an interference with the exercise of
one's rights under Article 8 (see, for example, Lambert v. France,
24 August 1998, § 21, Reports of Judgments and Decisions
1998 V).
- Such
an interference is justified by the terms of paragraph 2 of Article 8
only if it is “in accordance with the law”, pursues one
or more of the legitimate aims referred to in paragraph 2 and is
“necessary in a democratic society” in order to achieve
the aim or aims.
- The
expression “in accordance with the law” under Article 8 §
2 requires, first, that the impugned measure should have some basis
in domestic law; it also refers to the quality of the law in
question, requiring that it should be compatible with the rule of law
and accessible to the person concerned who must, moreover, be able to
foresee its consequences for him, and compatible with the rule of law
(see, among other authorities, Kruslin v. France, 24 April
1990, § 27; or Liberty and Others v. the United Kingdom,
no. 58243/00, § 59-63, 1 July 2008, with further
references).
- In
particular, the requirement of legal “foreseeability” in
the special context of secret measures of surveillance, such as the
interception of communications, cannot mean that an individual should
be able to foresee when the authorities are likely to intercept his
communications so that he can adapt his conduct accordingly. However,
the domestic law must be sufficiently clear in its terms to give
individuals an adequate indication as to the circumstances in which
and the conditions on which public authorities are empowered to
resort to any such measures. The Court has also stressed the need for
safeguards in this connection. In its case-law on secret measures of
surveillance, it has described an overview of the minimum safeguards
that should be set out in statute law in order to avoid abuses of
power (see Association for European Integration and Human Rights
and Ekimdzhiev v. Bulgaria, no. 62540/00, §§ 75-77, 28
June 2007 and Weber and Saravia v. Germany (dec.), no.
54934/00, ECHR 2006 ..., with further references).
- As
to the question whether an interference was “necessary in a
democratic society” for achieving the legitimate aims, the
Court has acknowledged that the Contracting States enjoy a certain
margin of appreciation in assessing the existence and extent of such
necessity, but this margin is subject to European supervision,
embracing both the legislation and the decisions applying it, even
those given by an independent court (see, for example, Barfod v.
Denmark, 22 February 1989, § 28, Series A no. 14). The Court
has to determine whether the procedures for supervising the ordering
and implementation of the restrictive measures are such as to keep
the “interference” to what is “necessary in a
democratic society”. In addition, the values of a democratic
society must be followed as faithfully as possible in the supervisory
procedures if the bounds of necessity, within the meaning of Article
8 § 2, are not to be exceeded (see Lambert v. France
cited above, § 31, with further reference).
2. Application of the general principles to the present
case
- It
has not been disputed that the applicant's telephone was tapped and
that the interception of his calls amounted to an interference with
his right under Article 8 to respect for his private life and
correspondence.
-
That interference had a statutory basis, namely the Police Corps Act
1993. It was designed to establish facts in the context of an
investigation into suspected large-scale organised criminal
activities of a financial nature and therefore to prevent crime,
which is a legitimate aim under the second paragraph of Article 8.
- The
applicant has contested both the compliance with the law in issue and
its quality, maintaining, in particular, that it was deficient in
terms of safeguards against abuse.
- In
the particular circumstances of the case the applicant's arguments
concerning the lawfulness of the interference are closely related to
the question as to whether the “necessity” test was
complied with in his case. Accordingly, the Court will address
jointly the “in accordance with the law” and “necessity”
requirements. In these circumstances, and also considering the
conclusion reached below and noting that the relevant provisions of
the Police Corps Act 1993 were replaced by new, more comprehensive
legislation offering a broader scope of guarantees within a
relatively short time after the events complained of had occurred
(see paragraphs 42-49 above and also, to the contrary, Dumitru
Popescu v. Romania (no. 2), no. 71525/01, § 84, 26 April
2007), the Court does not consider it necessary to examine separately
the applicant's argument that the quality of the law in force at the
material time had not complied with the requirements incorporated in
Article 8.
- The
Court notes that authorisation of and interception of one's telephone
calls under the Police Corps Act 1993 were subjected to a number of
conditions (see paragraph 40 above).
- The
respondent Government did not make available the relevant documents
which were classified (see paragraph 75 above). On the basis of the
documents before it the Court is not satisfied that the statutory
conditions were complied with in their entirety in the applicant's
case. For example, it has not been shown that the guarantees were met
relating to the duration of the interference, whether there had been
judicial control of the interception on a continuous basis, whether
the reasons for the use of the devices remained valid, whether in
practice measures were taken to prevent the interception of telephone
calls between the applicant as a lawyer and criminal defendants as
his clients. Similarly it has not been shown that the interference
restricted the inviolability of applicant's home, the privacy of his
correspondence and the privacy of information communicated only to an
extent that was indispensable and that the information thus obtained
was used exclusively for attaining the aim set out in section 36(1)
of the Police Corps Act 1993.
- In
addition, statements by several police officers and the judge
involved are indicative of a number of shortcomings as regards the
compliance with the relevant law in the applicant's case (see
paragraphs 19, 20 and 25 above). In particular, the director of the
special division of the financial and criminal police had concluded
that the interference in issue had not been based on any specific
suspicion against the applicant and no specific purpose had been
indicated in the relevant request. In his written statement the
Regional Court judge who had authorised the interception remarked
that similar requests were made in writing, but were submitted by the
police investigators in person. The officer submitting the request
presented the case orally and the oral presentation was usually more
comprehensive than the written request. As requests for authorisation
had to be handled with the utmost urgency, judges had no practical
opportunity to examine the case file or to verify that the request
for authorisation corresponded to the contents of the case file.
Depositions of the four members of the financial police investigative
team involved in the case included, inter alia, the
information that the request for authorisation of the interception of
the applicant's telephone had been drafted without a prior
consultation of the case file. The documents before the Court contain
no information indicating that those statements were unsubstantiated.
- In
these circumstances, the Court cannot but conclude that the procedure
for ordering and supervising the implementation of the interception
of the applicant's telephone was not shown to have fully complied
with the requirements of the relevant law and to be adequate to keep
the interference with the applicant's right to respect for his
private life and correspondence to what was “necessary in a
democratic society”.
- There
has therefore been a violation of Article 8 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant stated that he sought the finding by the Court of a breach
of his rights under Article 8 of the Convention which he considered
appropriate satisfaction.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares inadmissible the applicant's complaint
under Article 8 of the Convention about interference resulting from
the copying, misuse, distribution and publication of the transcripts
of his telephone conversations;
- Dismisses the Government's preliminary objection
concerning the complaint about interception of the applicant's
telephone;
- Holds that there has been a violation of
Article 8 of the Convention.
Done in English, and notified in writing on 9 June 2009, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
