CEDH · CASELAW;COMMUNICATEDCASES;ENG — 10 janvier 2025

.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 } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } .sA36B60A1 { font-family:Arial; font-style:italic } .s83BE5C30 { font-family:Arial; font-size:8pt; vertical-align:super } Published on 27 January 2025   THIRD SECTION Application no. 17955/23 Levan JEFREMOV against Estonia lodged on 20 April 2023 communicated on 10 January 2025 SUBJECT MATTER OF THE CASE The application concerns two separate issues: audio and/or visual surveillance of the applicant’s prison cell while he called his lawyer and processing of his mobile phone’s traffic and location data retained by the telecommunications service providers (hereinafter “telecommunications data”). The applicant was, at the relevant time, suspected of the offence of destruction of evidence. On 26 September 2019 and 15 June 2020 prosecutors authorised that applicant’s telecommunications data be requested from telecommunications service providers. The first authorisation covered the period from 26 September 2018 until 26 September 2019, and the second authorisation covered the period from 27 September 2019 until 15 July 2020. The authorisation decisions (with some differences) covered “personal data and location of the sender and the receiver”, data about “the fact of transmitting messages and about the duration, manner and format of transmitting messages” in respect of the phone number used by the applicant and about the “IMEI numbers of the telephones that appear in the applicant’s call detail record ( abonendi eristus )”. The data collected under these authorisations was used to prepare two reports, dated 21 July and 1 December 2020. It can be seen from the report of 21 July 2020 that the obtained telecommunications data, in so far as it was considered to have evidentiary value, was presented side-by-side with other information thus far gathered in the criminal case. It gave an overview of the applicant’s location, movements and communications (either calls or use of mobile data) over the relevant period of time. On 11 August 2020 Tartu County Court – upon a request from the prosecutor – authorised wiretapping of the applicant’s phone and secret audio and/or video surveillance ( telefonikõnede ja muu suhtluse salajane pealtkuulamine või -vaatamine ) of the applicant’s conversations with third persons. This authorisation covered the period from 13 August 2020 until 12   October 2020. On 7 September 2020 the applicant was arrested and he was subsequently remanded in detention. At that time, he was suspected of destruction of evidence, insurance fraud, unlawful handling of small quantities of narcotic drugs and aggravated breach of public order. On 10 September 2020 the prosecutor imposed restrictions on the applicant’s communication under Article 143 1 of the Code of Criminal Procedure ( kriminaalmenetluse seadustik ). In accordance with these restrictions the applicant was, inter alia , banned from having short term visits, telephone calls and correspondence, except for with his defence lawyer and with the officials of local and State authorities. These restrictions were lifted on 2   November 2021 immediately after the last witness was heard at trial. On 12 October 2020, while the applicant was still in pre-trial detention, the Tartu County Court – upon a request from the prosecutor – authorised audio and/or video surveillance ( teabe salajane pealtkuulamine või -vaatamine ) of the applicant’s prison cell (the exact modalities of the surveillance remain unknown) for the period from 13 October 2020 until 12   December 2020. The authorisation decision, certain parts of which are blanked out, made reference to the fact that the applicant was detained at the time, but – as it appeared from the secret surveillance reports – continued offending regardless of that. It appears that under this form of secret surveillance the applicant’s call with his defence lawyer was recorded in the manner that only what the applicant himself told his lawyer was taped and subsequently transcribed. The applicant claims that total of 16 phone calls were recorded in that manner. It appears that these recordings were not included in the prosecution evidence in the statement of charges. However, they were made available to the applicant. In the context of domestic criminal proceedings the applicant requested the review of lawfulness of the decisions authorising secret surveillance (including the decision of 12 October 2020 by which monitoring his phone calls with his lawyer was authorised), and of the decisions by which the access to his telecommunications data was authorised. In relation to telecommunications data the applicant argued that a) the decision authorising the gathering of such telecommunications data had not been sufficiently reasoned as to the necessity of obtaining the data; b) that the offence he was suspected of could not be considered a serious one; and that c) some communication data had been obtained after 7 October 2020 i.e. the date after which the Supreme Court (referring to the CJEU case-law) had considered the obtaining of such data to be unlawful. The applicant did not challenge the data retention as such. Before the first and second instance courts he asked the evidence obtained as a result of secret surveillance and through obtaining telecommunications data to be declared inadmissible. He also claimed damages in respect of the fact that his phone calls with his lawyer had been monitored and recorded in the above-described manner. In his appeal on point of law he no longer challenged the admissibility of evidence obtained via secret surveillance, but maintained his claim as related to telecommunications data and the claim for damages. The domestic courts found that the secret surveillance had been lawful and the evidence resulting from it was admissible. They dismissed his claim for damages, noting that only the things said by the applicant to his lawyer were recorded, and not what the lawyer said to his applicant. The courts also found that the telecommunications data was admissible as evidence. As relates specifically to the telecommunications data, the courts held that the applicant was accused of a serious offence, there had not been any other way to gather relevant evidence, the authorisation decisions had been issued before 7   October 2020 and had been sufficiently reasoned, and the applicant’s defence rights had not been unduly curtailed. The applicant was convicted of destruction of evidence, insurance fraud, and aggravated breach of public order. His conviction become final on 9   January 2023. He complains under Article 8 about secret surveillance of his cell which led to the recording of his phone calls with his defence lawyer, and about “the positioning” by the authorities. 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, in relation to the secret audio and/or video surveillance of his prison cell while he was in pre-trial detention, which resulted in the (partial) recording of his phone calls with his defence lawyer (compare, R.E. v. the United Kingdom , no.   62498/11, § 131, 27 October 2015, and Dudchenko v.   Russia , no.   37717/05, §§ 104-110, 7 November 2017)?   In that connection, what weight should be attributed to the fact that by the time the Tartu County Court authorised the above-mentioned secret surveillance on 12 October 2020, the applicant was in pre-trial detention and under extensive communications restrictions?   2. Has there been a violation of the applicant’s right to respect for his private life, contrary to Article   8 of the Convention, in relation to the data retention by the telecommunications service providers and/or the subsequent access to the retained telecommunications data as authorised by the prosecutor (“positioning” as referred to by the applicant) (compare Škoberne v.   Slovenia , no. 19920/20, § 113, 115, 139 and 143, 15 February 2024, and Ben Faiza v. France , no. 31446/12, §§ 62-64, 8 February 2018; see also Pietrzak and Bychawska-Siniarska and Others v. Poland , nos. 72038/17 and   25237/18, § 258, 28 May 2024)?   In connection to the previous question, has the applicant – who raised the matter related to telecommunications data in the domestic criminal proceedings from the angle of access to that data and with the aim of excluding such evidence from the case against him – exhausted domestic legal remedies in relation to (the entirety) his complaint under Article 8 of the Convention (compare Škoberne , cited above, §§ 43, 46, 52, 125 and 143-144, 15 February 2024; see also in this respect the Supreme Court’s judgment of 18 June 2021 in case no. 1-16-6179, § 89, which refers to the possibility of compensatory remedies)?