CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 décembre 2023

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 15 January 2024   SECOND SECTION Application no. 7751/22 Andrius JANUKONIS against Lithuania lodged on 21 January 2022 communicated on 18 December 2023 SUBJECT MATTER OF THE CASE The application concerns the applicant’s complaint about a breach of his right to respect for his private life and lack of domestic remedies. The applicant is a business person and an investor. In 2002 and 2003, the law enforcement authorities applied criminal intelligence measures against the applicant and intercepted his telephone conversations. In March 2004 a pre-trial investigation was opened against the applicant and other persons on suspicion of embezzlement, bribery, money laundering, unlawful activity of a corporate person and other crimes. The transcripts of the applicant’s intercepted telephone conversations – several volumes of materials – had been included in the criminal file. In June 2004 the applicant was served a notice of suspicion of bribery. On 21   October 2009 the pre-trial investigation regarding that crime was discontinued, among others, on the ground that information obtained when intercepting his telephone conversations had been inconclusive and not concrete; besides, no other conclusive incriminating evidence had been gathered. On 3   December 2009 the pre-trial investigation was discontinued regarding the remaining crimes that the applicant had been suspected of. The prosecutor held that, having exhausted all procedural measures, no data proving that a crime had been committed had been gathered. The prosecutor returned certain seized items, such as, a computer and a mobile telephone, to the applicant’s co-suspect, but ordered that the data containing the applicant’s intercepted telephone conversations should remain in the criminal file. In June 2018 and in September 2020 the Prosecutor General’s Office transferred the pre-trial investigation files, more than 118 volumes, to a law firm, which had not been part of the aforementioned pre-trial investigations. The fact of the transfer of the files was acknowledged by the Prosecutor General’s Office in February 2020, a prosecutor having stated that that particular law firm was representing the Republic of Lithuania and the Vilnius City Municipality in Stockholm and Washington international arbitrations regarding investment-related disputes. Although the pre-trial investigations had been discontinued a long time ago, the use of the materials gathered had been necessary in order to represent the State’s and the municipality’s interests and at the same time to protect public interest regarding the disputes in international arbitration. The applicant lodged a complaint with the prosecutors, asking that the pre-trial investigation materials be taken back from the third persons (the law firm in question) and that those materials be destroyed, on the basis of Article   161 §   2 of the Code of Criminal Procedure, which provides that if the pre-trial investigations are discontinued, any private life-related information is destroyed. The prosecutors dismissed the request. They held, firstly, that the applicant’s right to protection of his private life could be restricted because during the pre-trial investigations data had been gathered in order to investigate crimes. Secondly, it would be inappropriate to destroy the materials transferred to third parties (the law firm), given that the pre-trial investigation materials were relevant for the proceedings pending in international arbitration, and to destroy those materials would run against public interest (decision of 16 April 2021). The prosecutor also held that there could be a need to re-open the pre-trial investigations in the future (decision of 27   May 2021). The applicant had argued that the prosecution of the crimes in respect of which the pre-trial investigations had been terminated in 2004 and 2009 has already become time-barred. In September 2021 the prosecutor’s office issued a press release, stating that the applicant wished to have twenty-year-old pre-trial investigation materials destroyed, and releasing into the public domain the pre-trial investigation materials and the details of acts he had been suspected of. In 2021 the applicant lodged an appeal against the prosecutors’ decisions with the administrative courts. He observed that as of 3   December 2009 he had not been a party to criminal proceedings, and that the prosecutors had acted as subjects of public administration ( viešojo administravimo subjektai ), thus their decisions could be appealed against. By a final ruling of 25   August 2021 the Supreme Administrative Court acknowledged that the law enforcement institutions could act not only as subjects of pre-trial investigations ( ikiteisminio tyrimo subjektai ), but also as subjects of public administration. The court considered, however, that the prosecutors’ decision should be appealed against in accordance with the rules of criminal procedure. The applicant then lodged an appeal with the pre-trial investigation judge of the Vilnius City District Court, asking that the prosecutors’ decisions of 16   April 2021 and 27   May 2021 be quashed, that the pre-trial investigation materials, including the data concerning the applicant’s telephone conversations, be returned to the prosecutors and that that data be destroyed. By a final and non-appealable ruling of 22   September 2021 the Vilnius City District Court refused to grant the applicant’s request, having upheld the prosecutors’ decisions as well-founded and reasoned. For the court, the right to privacy was not absolute, and a person who had committed a crime or other actions which had been contrary to the law could not expect privacy. The court also held that the data gathered during the pre-trial investigations could be relevant for the cases pending in international arbitration and that the applicant therefore should be interested that the truth would be established by those institutions. Under Article 8 of the Convention the applicant complains about a breach of his right to respect for his private life and correspondence. He does not question the lawfulness of his secret surveillance that had taken place in 2002 and 2003. Nonetheless, he is dissatisfied that even though the pre-trial investigations had been discontinued in 2004 and in 2009, the data gathered, containing private information about him, is being held without a time-limit and was even transferred to third persons. The applicant submits that such an interference lacks a proper legal basis, because the domestic legal provisions, concerning the authorities’ obligation to protect data obtained during secret surveillance, to destroy any private life-related data and to use such data for purposes other than criminal investigations only in certain circumstances, is applied in an arbitrary fashion and by granting the State authorities unfettered powers. He also submits that the interference lacks a legitimate aim, and it is unnecessary in a democratic society, the State institutions having been given undue priority over the applicant’s interests. The applicant also considers that the State thus has failed in its positive obligation to protect his private life and correspondence. Under Article   13 of the Convention the applicant further complains that even though as early as in 2012 in the case of Drakšas v. Lithuania (no.   36662/04, §   68, 31   July 2012) the Court established that there was no institution which could effectively scrutinise any errors which could have occurred and did occur in the implementation of secret surveillance measures, ten years later persons who are subjected to secret surveillance are not protected from arbitrariness. In the applicant’s concrete case arbitrariness is manifested in the State institutions’ unlimited discretion to use the data gathered during secret surveillance, after the pre-trial investigation was discontinued, for aims that are not provided for by law, such as to transfer that data to third parties for use in civil proceedings, in which individuals, who had been under the surveillance, do not even take part. The applicant states that he has not had an effective remedy to defend his rights, because the prosecutors dismissed his complaints and neither the administrative courts nor the courts of general jurisdiction had examined the merits of his grievance. QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s right to respect for his private life or correspondence, contrary to Article   8 of the Convention (see, mutatis mutandis , Drakšas v. Lithuania , no. 36662/04, §§   54, 55 and 60, 31   July 2012)?   (a)     In particular, has there been an interference with the applicant’s right to respect for his private life or correspondence, within the meaning of Article   8 §   1 of the Convention by the retention and transfer to third persons of the data gathered during the pre-trial investigations (see Roman Zakharov v. Russia [GC], no.   47143/06, §   173, ECHR 2015)?   (b)     If so, was that interference in accordance with the law (see Amann v. Switzerland [GC], no.   27798/95, §§   55 and 56, ECHR 2000-II; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria , no.   62540/00, §   76, 28 June 2007; and, mutatis mutandis , Bykov v. Russia [GC], no.   4378/02, §   78, 10   March 2009, and Karabeyoğlu v. Turkey , no.   30083/10, §   69, 7   June 2016) and necessary in terms of Article   8 §   2 (see Roman Zakharov , cited above, §   231; see also Big Brother Watch and Others v. the United Kingdom [GC], nos.   58170/13 and 2 others, §§   334 and 335, 25   May 2021)?   2.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article   8, as required by Article   13 of the Convention (see Drakšas , cited above, §   68; see also, mutatis mutandis , Klass and Others v. Germany , 6   September 1978, §   65, Series A no.   28)?