CEDH · CASELAW;CLIN;ENG — 23 juin 2022

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Slovakia - 58359/12, 27787/16 and 67667/16 Judgment 23.6.2022 [Section I] Article 8 Article 8-1 Respect for private life Practically unfettered power exercised by the national intelligence service implementing surveillance operation, without adequate safeguards or protection to those randomly affected: violation Facts – The applicant is the business partner of the applicant in the case of Zoltán Varga v. Slovakia . In 2005 and 2006 the Slovak Intelligence Service (“the SIS”) carried out a surveillance operation (“the Gorilla operation”) which had been authorised by warrants issued by the Bratislava Regional Court (“Regional Court”) and had the aim of monitoring Mr Varga and one other person. The applicant submits that the other person was him. The warrants allowed the bugging of Mr Varga’s resulting among others in audio recordings and transcribed analytical summaries of the activity there. The warrants were subsequently annulled by the Constitutional Court following proceedings by Mr Varga. Meanwhile, some of the material allegedly linked to the operation was anonymously posted on the internet. A number of investigations were pursued into various matters concerning the operation, including an investigation into suspected corruption (the “Gorilla investigation”) which was still ongoing. The applicant attempted numerous legal avenues before judicial, executive as well as parliamentary authorities, inter alia , to have the surveillance material destroyed. Amongst other things, his constitutional complaints brought between 2012 and 2015 which were similar to those of Mr Varga were all dismissed as either being belated (initial complaint) or on other grounds. The Constitutional Court also referred to the conclusions reached in its decision on the admissibility of Mr Varga’s constitutional complaint to the effect that, inter alia , it did not have jurisdiction in relation to supervising the implementation of surveillance warrants by the SIS. Proceedings brought by the applicant before the ordinary courts for the protection of personal integrity against the State and the SIS respectively were still ongoing; the latter having been stayed pending the outcome of the appeal on points of law by the SIS in a similar action by Mr Varga, in which the ordinary courts had found the implementation of the warrants had violated his right to the protection of his personal integrity. Law – Article 8: (a) Exhaustion of domestic remedies – The Court reiterated its findings in Zoltán Varga in this respect. More specifically, as in this case, where the continued existence of the impugned material was in itself alleged to constitute a violation of the applicant’s rights, for a remedy to be effective for Convention purposes it must in principle be capable of leading to the destruction of that material. The remedy advanced by the Government, namely an action for protection of personal integrity, was not. (b) Interference – Noting that to a significant extent, the applicant’s Article 8 complaints were identical and arose from an identical factual and procedural background to that examined in Zoltán Varga , the Court found that the case-law cited and applied in that case was applicable in the present case. Consequently, the implementation of the two warrants and the retention of the resulting material resulting from it fell within the ambit of Article 8 and had constituted an interference with the applicant’s right to respect for his private life. (c) Whether the interference was justified – As in Zoltán Varga the Court considered whether the interference had been “in accordance with the law”. (i) Implementation of the warrants – The Court found in Zoltán Varga that the implementation of the warrants had in principle a statutory basis but, as found by the Constitutional Court when examining the individual complaints lodged by Mr Varga, it had inherently been tainted by serious deficiencies in those warrants and in the associated procedures. As these deficiencies had been attributable to the issuing court and in essence of an objective nature, the fact that the applicant’s similar constitutional complaint in respect of the issuing court had been rejected as belated did not prevent the Court from taking those deficiencies into account in the assessment of what was at stake in the instant case namely the implementation of the warrants by the SIS, in respect of which the Constitutional Court had declined to issue a decision for want of jurisdiction. Likewise, although, unlike Mr Varga’s case, in the present case there had been no finding by the ordinary courts of a violation of the applicant’s right to the protection of his personal integrity, the Court was of the view that if this factual distinction made any difference at all to the assessment of the present case, it was to the benefit of the applicant. The Court reiterated that, as in Zoltán Varga , in view of the lack of clarity of the applicable jurisdictional rules and the lack of procedures for the implementation of the existing rules and flaws in their application, 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. It had accordingly not been “in accordance with the law” for the purposes of Article 8 § 2. Furthermore, the situation in the present case had been aggravated by two additional factors. Firstly, the uncontested fact that the applicant had himself not 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. Secondly, the protracted fundamental uncertainty in the applicable legal framework as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants. (ii) Storing of the derivative material from the implementation of the warrants – The Court had held in Zoltán Varga that the storing of the derivative material obtained from the implementation of the two warrants had been subject to confidential rules which had been adopted and applied by the SIS, with no element of external control. Such rules had clearly been lacking in accessibility and had provided Mr Varga with no protection against arbitrary interference with his right to respect for his private life. The retention had therefore not been in accordance with the law. This finding also applied in the present case. Conclusion: violation (unanimously). Article 6 §§ 1 and 2: The applicant’s complaints which concerned the Gorilla investigation did not fall under Article 6 as he had never been charged with a criminal offence nor had any public statements by officials indicated that he had been. Conclusion : inadmissible (incompatible ratione materiae ). Article 41: EUR 9,750 in respect of non-pecuniary damage. (See also Zoltán Varga v. Slovakia , 58361/12 et al., 20 July 2021, Legal Summary )   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes