18 Jul Secret surveillance was not in accordance with the law

In the case of Haščák v. Slovakia (application nos. 58359/12, 27787/16 and 67667/16, 23.06.2022) the European Court of Human Rights held, unanimously, that there had been a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The applicant is a prominent businessman associated with an influential finance group and a business partner of the applicant in the case of Zoltán Varga v. Slovakia (nos. 58361/12 and 2 others). Two surveillance warrants were issued by the Bratislava Regional Court in the mid-2000s, which had the aim of monitoring by the Slovak Intelligence Service (SIS) of Zoltán Varga and one other person. Mr Haščák submits that the other person was him. The warrants allowed the bugging of Mr Varga’s flat – the so-called “Gorilla operation” – resulting in, among other things, audio recordings and transcribed analytical summaries of the activity there.

The domestic authorities understood that the audio recording had been destroyed by the SIS in 2008. The summaries were archived by the agency with no one but a court having access. In 2012 the Constitutional Court ruled on a complaint by Mr Varga, effectively annulling the warrants in so far as they concerned him, finding them to have been unjustified and unlawful and a violation of his fundamental rights. Meanwhile, in 2011, material was anonymously published on the Internet purporting to be an SIS analytical summary of the operation, describing Mr Haščák discussing with others massive corruption in the privatisation of State-owned companies

The Court stated that to a significant extent, Mr Haščák’s Article 8 complaints are identical and arise from an identical factual and procedural background to that examined in Zoltán Varga. The Court therefore applied that case-law to the present case. 

While there had been a basis in law, the operation had had numerous deficiencies, some of which had been recognised at the domestic level in response to complaints and actions of Mr Varga. Although the domestic courts made no such findings in the individual case of Mr Haščák, they were relevant to the assessment of his case. The Court reiterated that, as in Zoltán Varga, when implementing the surveillance warrants the SIS had practically enjoyed discretion amounting to unfettered power, which had not been accompanied by a measure of protection against arbitrary interference, as required by the rule of law. Furthermore, that situation had been aggravated by the uncontested fact that Mr Haščák had not himself been the target of the surveillance under the first of the two warrants, in the light of his unchallenged argument that the law provided no protection to persons randomly affected by surveillance measures, and by the fundamental uncertainty around the practical and procedural status of the audio recording retrieved in 2018, presumably of SIS provenance.

The Court had previously held in Zoltán Varga that the storing of the analytical material obtained in the surveillance operation had been subject to confidential rules with no external oversight. The retention had therefore not been in accordance with the law. The Court ruled that that also applied in the present case.

The implementation of the two warrants and the retention of the analytical material had thus been in violation of Article 8 of the Convention.