CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 juin 2024

.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 } .s32563E28 { margin-top:0pt; margin-bottom:0pt } Published on 15 July 2024   FOURTH SECTION Application no. 16530/23 Nemanja POPOVIC against Austria lodged on 13 April 2023 communicated on 28 June 2024 SUBJECT MATTER OF THE CASE The application concerns the Austrian authorities’ use in criminal proceedings of communication data intercepted by a third state from the applicant’s phone and his subsequent conviction for aggravated drug trafficking and money laundering as a member of a criminal organisation. On an unspecified date, the Vienna Public Prosecutor’s Office began investigating the applicant after having received from the United States Federal Bureau of Investigation (hereinafter “FBI”) communication and meta data from the applicant’s phone. The applicant had used an encrypted phone equipped with the messaging app ANOM. As subsequently established by the Vienna Regional Criminal Court (hereinafter “the Regional Court”), the messaging app ANOM had been developed by the FBI. ANOM phones could be used to send messages to other phones running the same app. They were distributed among criminal networks and touted as fully secure from interception. The FBI, however, had been able to decrypt and read messages exchanged via the app. In June 2021 the applicant was arrested and later indicted. In the main hearing before the Regional Court, the applicant’s lawyer requested the court to disregard the messages exchanged via ANOM, arguing that they had been obtained unlawfully and their consideration as evidence would thus be inadmissible according to Article 140 of the Austrian Code of Criminal Procedure ( Strafprozessordnung – hereinafter “CCP”). This provision stipulates, inter alia , that “results” ( Ergebnisse ) within the meaning of Article   134 of the CCP of an investigative measure, such as the surveillance of messages ( Überwachung von Nachrichten ), may only be used as evidence, and will otherwise be null and void, if the measure was lawfully ordered by the Public Prosecutor and authorised by a court. The Regional Court dismissed the request. It held that Austrian authorities had neither acted as agents provocateurs nor were the FBI’s investigations initiated at the request or with the assistance of Austrian law enforcement authorities. The messages provided by the FBI did therefore not constitute “results” within the meaning of Article 134 of the CCP. Their use as evidence did consequently not violate Article   140 §   1 of the CCP. On 21 June 2022 the applicant was convicted of aggravated drug trafficking and money laundering as a member of a criminal organisation and sentenced to seven years and six months in prison. The conviction was largely based on the intercepted messages which had been provided by the FBI. On 18 January 2023 the Supreme Court dismissed the applicant’s plea of nullity. It confirmed, inter alia , that the provisions of the CCP on the collection and use of evidence were not applicable to activities of foreign authorities if they had not been conducted at the request or with the assistance of Austrian law enforcement authorities. Relying on Article 6 of the Convention, the applicant claims that the proceedings and his conviction were unfair as the only evidence on which his conviction was based had been obtained unlawfully and in breach of Article   8 of the Convention. Under Article 8 of the Convention, he complains that surveillance measures without any initial suspicion were not in accordance with the law and that the surveillance measures and the preservation of data were disproportionate. He further alleges a violation of Article 13 of the Convention, arguing that he did not have at his disposal any effective domestic remedies to complain against the impugned surveillance measures.   QUESTIONS TO THE PARTIES 1.     Has the applicant exhausted all effective domestic remedies, as required by Article   35 §   1 of the Convention?   In particular, did the applicant invoke before domestic courts the rights on which he now wishes to rely before the Court, at least in substance and in compliance with the formal requirements laid down in domestic law (see Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, §§   604-605, 13   November 2003)?   Having regard to the applicant’s complaints, would a complaint under Article   140   §1   (1)(d) of the Federal Constitution ( Bundes-Verfassungsgesetz ) have constituted an effective remedy within the meaning of Article   35 §   1 of the Convention?   The applicant is also requested to provide copies of: (i)   the bill of indictment, (ii)   his objection against the bill of indictment ( Einspruch gegen die Anklageschrift ), (iii)   the Vienna Court of Appeal’s decision on the objection, (iv) his fundamental rights complaint ( Grundrechtsbeschwerde ) to the Supreme Court, (v)   the Supreme Court’s decision on the complaint, and (vi)   the Vienna Court of Appeal’s decision on his appeal against the sentence ( Entscheidung über die Berufung ).   2.     Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article   6 §   1 of the Convention?   3.     Has there been an interference with the applicant’s right to respect for his private and family life, home or correspondence, within the meaning of Article   8 §   1 of the Convention? If so, was that interference in accordance with the law and necessary within the meaning of Article   8 §   2?   4.     Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article   13 of the Convention?