13 Feb Wiretapping in the context of criminal proceedings was not in accordance with the Convention
In the case Potoczká and Adamčo v. Slovakia (no. 7286/16, 12.01.2023) the Court of European Court of Human Rights found a violation Violation of Article 8 and Article 6 § 1 of the European Court of Human Right as regards the right to an independent and impartial tribunal and the right to a reasoned judgments.
The applicants, Anita Potoczká and Branislav Adamčo, are a couple. The case concerns telephone tapping in 2004 in the context of criminal proceedings for extortion against Mr Adamčo. The tapped mobile phone belonged to Ms Potoczká, but was – according to the authorities – being used by Mr Adamčo.
Relying in particular on Articles 8 (right to respect for private life) and 13 (right to an effective remedy) of the Convention, the applicants complain that the court warrant authorising the tapping did not give any reasons; nor did it identify the issuing judge or monitor whether there were continued grounds for the tapping.
The Court notes that the process of phone tapping in the respondent State comprises several stages and falls under the responsibility of several authorities. In so far as relevant in the present case, the phone tapping in question was ordered by the Regional Court and carried out by the police, on the basis of the warrant issued by the Regional Court. The warrant in question was within the framework provided in Article 88 of the 1961 CCP. Under paragraphs 2 and 3 of that provision, it was a requirement for phone-tapping warrants under the CCP to be issued by a judge and to be supported by reasoning. As recognised in the Constitutional Court’s case-law, the reason why phone-tapping warrants had to be supported by reasoning in all cases was that they authorised a serious interference with privacy, whereas the persons concerned had no direct remedy and would normally learn of the tapping only in retrospect. The statutory requirement for the phone-tapping warrant to be supported by reasoning is consonant with the Convention case-law, pursuant to which the verification by the authority empowered to authorise the use of secret surveillance that, inter alia, the use of such measures is confined to cases in which there are factual grounds for suspecting a person of planning, committing or having committed certain serious criminal acts and that the measures can only be ordered if there is no prospect of successfully establishing the facts by another method or this would be considerably more difficult, constitutes a guarantee of an appropriate procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. It is therefore important that the authorising authority should have determined whether there was compelling justification for authorising measures of secret surveillance.
The warrant in question has not been made available to the Court. Nevertheless, in the absence of any objection by the Government, the Court takes it as established that the warrant contained no reasoning beyond a reference to the Public Prosecution Service’s request and an offhand finding that, in view of that request, obtaining the necessary evidence by other means was ineffective or impossible.
As the warrant contained no reasoning, it cannot be reviewed in terms of necessity in a democratic society for the purposes of Article 8 § 2 of the Convention. The warrant therefore fell short of an essential requirement of national law, a fact which not even the Government have sought to contest.
The Court concluded that that the interference with the applicants’ right to respect for their private life and correspondence was not in accordance with the law. There has accordingly been a violation of Article 8 of the Convention in respect of both applicants.
Reference from the official website of the European Court of Human Rights