KVASNICA proti Slovensku

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 72094/01
by Roman KVASNICA
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 26 September 2006 as a Chamber composed of:

Sir Nicolas Bratza, President,
Mr G. Bonello,
Mr M. Pellonpää,
Mr K. Traja,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr T.L. Early, Section Registrar,

Having regard to the above application lodged on 11 July 2001,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Roman Kvasnica, is a Slovakian national who was born in 1962 and lives in Piešťany. He was represented before the Court by Mr J. Drgonec, a lawyer practising in Bratislava. The respondent Government were represented by Mrs A. Poláčková, their Agent.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. Factual background

The applicant is a lawyer. He used to be a public prosecutor and is now a practising member of the Slovakian bar association.

At the time of the events complained of, the applicant acted as the legal representative of several industrial companies belonging to a group associated with a strategic steelworks in eastern Slovakia. For a period of time, he was on the board of directors of the company owning the works.

In 1999 the Minister of the Interior set up a special team of investigators to investigate large-scale organised criminal activities of a financial nature which were supposedly being committed in connection with a company belonging to the above group. The team was composed of officers from the financial police.

At an unspecified time the investigators charged an individual, I.C., with aggravated fraud.

2. Interference with the applicant’s telephone communications

At an unspecified time the investigators applied for judicial authorisation to tap the applicant’s telephone. At an unspecified time a judge of the Bratislava Regional Court (Krajský súd) granted the authorisation. The applicant’s professional mobile phone was subsequently tapped.

In November 2000 the applicant learned that calls from his phone were being intercepted; that the tapping was being carried out by the financial police; and that the contents of his telephone communications were known outside the police.

On 5 January 2001 the applicant received an anonymous letter confirming the above information and advising him that the tapping had taken place from October to December 2000 and had been carried out at the request of opponents of his clients. The letter further stated that verbatim records of the applicant’s calls had been leaked to various interest groups with a criminal background.

Later in 2001 the tapping was reported in the media. At an unspecified subsequent time it was abandoned.

3. Investigation of the interference with the applicant’s telephone communications

In January 2001 the applicant lodged a criminal complaint with the Inspection Service of the Police (“the Inspection Service”), claiming that the tapping was unlawful and unjustified and accusing one or more unknown police officers of having abused their official authority.

At an unspecified time the director of the special-task department of the financial and criminal police (odbor zvláštnych úloh správy kriminálnej a finančnej polície) lodged a similar criminal complaint. On the basis of his own examination of the case file, he had come to the conclusion that the tapping contravened sections 36 and 37 (1) of the Police Corps Act (see “Relevant domestic law and practice” below). This was so in particular because it had not been based on any specific suspicion against the person being targeted and no specific purpose had been indicated. In his view, the members of the special investigative team had abused their official authority within the meaning of Article 158 of the Criminal Code.

On 10 May 2001 the judge who had authorised the tapping made a written statement to the President of the Regional Court. It appears that the statement was made in connection with the investigation of the police director’s criminal complaint. The judge stated that the request for the authorisation had met all formal and substantive requirements. In his view, the police director had no authority to challenge the authorisation. The judge therefore considered it inappropriate to address the substance of the director’s objections. He nevertheless remarked, in general, that requests for authorisation were made in writing, but were submitted in person. The officer submitting the request presented the case orally and the oral presentation was usually more comprehensive than the written request. As requests for authorisation had to be handled with the utmost urgency, judges had no practical possibility of examining the case file and of verifying that the request for authorisation corresponded to the contents of the case file. Furthermore, the information in the case file was often obtained from unverifiable sources. Judges therefore had to rely on the information in the request for authorisation, which presupposed a certain element of trust. The judge further observed that there had been an enormous increase in the workload concerning tapping and that this was due, inter alia, to an inter‑agency agreement which had been reached under the auspices of the Ministry of Justice (see “Relevant domestic law and practice” below) and had extended the jurisdiction of the Bratislava Regional Court in this area. In his view, questions of jurisdiction should not be regulated by “agreements” but by statute, which was not the case in relation to tapping. The judge stated that telephone tapping had been authorised on three previous occasions in the course of the investigation into the suspected extensive criminal transactions within the industrial group mentioned above. He had thus had sufficient and complex knowledge about the applicant’s case. The judge associated himself completely with the decision taken, although the suspicion against the applicant might later have been dispersed. This was nothing unusual and happened in 10-20% of cases.

On 20 June 2001 the Inspection Service questioned the applicant in connection with his criminal complaint. According to the applicant, since then there has been no official communication concerning his criminal complaint and he has not been informed of the outcome of the investigation of it.

On 21 June and 2 July 2001 the Inspection Service requested that the Ministry of the Interior discharge members of the special investigative team from the obligation of confidentiality in respect of the subject matter of the investigation. The Ministry agreed on 9 and 10 July 2001 respectively.

Between 5 and 20 September 2001 the Inspection Service questioned four members of the investigative team. Their depositions included, inter alia, the information that the operative part of the team had been colluding with the applicant; that the applicant had been in close contact with I.C. (see above); that the applicant had been involved in several contractual transactions within the group which had eventually harmed the interests of the steelworks; that the request for authorisation to tap the applicant’s phone had been based on the suspicion that he had committed the offences of aggravated fraud (Article 250 of the Criminal Code) and money laundering (Article 255 of the Criminal Code); that the request had been drafted without consultation of the case file; that the tapping had been necessary because it had not been possible to move the investigation forward without it; and that after the tapping had been compromised the case file had been made available to various officials, including the Minister of Justice, who at that time also acted as the Minister of the Interior ad interim.

On 21 September 2001 the Inspection Service dismissed the criminal complaint by the police director. It noted that a “committee of experts specialising in operational tasks” had been set up and “had detected no breach of the applicable regulations”. The tapping had been authorised by a judge and had thus been lawful. There was no basis for scrutinising the judge’s decision. In conclusion, there was no case to answer. The decision has never been served on the applicant.

B. Relevant domestic law and practice

1. The Constitution (Constitutional Law no. 460/1992 Coll., as applicable at the relevant time)

Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms.

Article 16 provides protection to personal integrity. Pursuant to paragraph 1, the inviolability of a person and his or her privacy is guaranteed and can be restricted only in cases defined by law.

Pursuant to Article 19, everybody has the right to protection against unjustified interference with his or her private and family life (§ 2) and against the unjustified collection, publication or other misuse of personal data (§ 3).

Article 22 guarantees the secrecy of correspondence, other communications and written messages delivered by post, and of personal information (§ 1). The privacy of letters, other communications and written messages kept privately or delivered by post or otherwise, including communications made by telephone, telegraph and other means, cannot be violated by anyone except in cases specified by law (§ 2).

The right to judicial and other legal protection is governed by Section (oddiel) 7 of Chapter (hlava) 2. Under Article 48, no one can be removed from the jurisdiction of his or her statutorily designated judge, the jurisdiction of the courts being regulated by statute (§ 1). Every person has the right to have his or her case tried in public in his or her presence (§ 2).

2. Code of Criminal Procedure (Law no. 141/1961 Coll., as in force at the relevant time)

The Code distinguishes between the procedure before the formal institution (commencement) of a criminal prosecution, which is governed by the provisions of Chapter 9, the procedure after the commencement of the prosecution but before the filing of the bill of indictment (obžaloba), known as the “preparatory proceedings” and governed by the provisions of Chapter 10, and the procedure in court which begins with the filing of the indictment and is governed by the provisions of Chapter 11.

The procedure before the institution of a criminal prosecution encompasses receiving and verifying information, obtaining documentation and explanations and securing evidence with a view to determining whether a criminal offence has been committed and whether it is justified to bring a formal prosecution in connection with it. As a general rule, eavesdropping and tapping is not allowed at this stage of the proceedings (Article 158 § 4), unless such measures cannot be postponed or repeated within the meaning of Article 158 § 6.

The procedure before the commencement of a criminal prosecution ends with a formal decision either not to accept the criminal complaint (Article 158 § 2), or to refer the matter to the relevant authority dealing with minor offences or disciplinary or other matters (Article 159 § 1), or to refuse to take action (Article 159 §§ 1, 2 and 3), or to institute formal criminal proceedings (Article 160).

The scope of the jurisdiction and competence of criminal courts is defined in Section 1 of Chapter 2. Proceedings at first instance are to be conducted before a district court (Okresný súd) unless the law provides otherwise (Article 16). There are no specific rules concerning the territorial jurisdiction of courts in respect of judicial steps prior to the institution of criminal proceedings.

3. Police Corps Act (Law no. 171/1993 Coll., as in force at the relevant time)

The Act governs the organisation and powers of the police. Section 2 (1) defines the tasks of the police. These include serving (a) to protect fundamental rights and freedoms, life, health, personal safety and property; (b) to detect criminal offences and to identify the culprits; (c) to detect illegal financial operations and money laundering; (d) to investigate criminal offences and to examine criminal complaints; and (e) to combat terrorism and organised crime.

The means and devices used for secret eavesdropping and recording of telecommunications fall within the definition of “information‑technology devices” (section 35 (b)).

The police are entitled to use these devices in carrying out the specific tasks enumerated in section 36. These tasks include fighting terrorism, money laundering, organised crime, drug offences, money counterfeiting and other “extremely serious criminal offences” within the meaning of the Criminal Code. Such devices cannot be used in respect of communications between a lawyer and a defendant in criminal proceedings.

The conditions and terms for the use of such devices are set out in section 37. They include, inter alia, the prior written consent of a judge. Such consent is valid for a specified time, no more than six months (subsection 2), and can be repeatedly renewed, each time for no more than six months (subsection 3). There are no specific criteria for establishing which particular judge or court is to give the consent. The judge who gave the consent has the duty to examine on a continuous basis whether the reasons for the tapping persist and, if they do not, to order an end to the tapping (subsection 6). The police themselves have the same duty (section 38 (1)).

Section 69 deals with police information systems and databases. The police are entitled to set up and operate information systems and databases containing information about persons and facts which are relevant for their work (subsection 1). The police have the duty to protect the data stored in such systems from disclosure, abuse, damage and destruction (subsection 2). If the data are no longer needed, they must be destroyed or stored so that they are not accessible to anyone except a court (subsection 3).

4. Decree of the Minister of Justice on the Rules of Procedure before District Courts and Regional Courts (Decree no. 66/1992 Coll.)

A minister has the power to issue generally binding regulations only if and to the extent that he is specifically authorised to do so by an Act of Parliament. The decree in question was issued inter alia pursuant to Article 391a § 2 of the Code of Criminal Procedure, which authorised the Minister of Justice to lay down further details of the procedure before district courts and regional courts “in dealing with criminal matters”.

The presidents of each regional court and each superior military court (Vyšší vojesnký súd) are to assign one judge to deal with matters concerning information‑technology devices (section 45 (1)). If it is the police who seek to use such devices, the matter falls to be considered by a judge of a regional court (section 45 (2)). There is, however, no indication as to which specific regional court it should be.

5. Other regulations

On 29 March 2000 a conference took place under the auspices of the Ministry of Justice. Representatives of the Ministry, the regional courts, the head office of the police and the office of the Prosecutor General took part. The participants agreed that matters concerning authorisation of wiretapping would be handled by the regional court in the judicial district in which the agency requesting it had its seat.

6. Amendment no. 185/2002 Coll. to the Courts and Judges Act (Law no. 335/1991 Coll.)

The amendment entered into force on 16 April 2002. It inter alia introduced subsections 2 and 3 to section 13 of the Courts and Judges Act. They provide that, as a general rule, authorisation for monitoring telecommunications falls within the jurisdiction of the regional courts. Territorial competence is conferred on the regional court in the judicial district in which the authority seeking the authorisation has its seat.

7. Civil Code (Law no. 40/1964 Coll., as amended)

Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics.

Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be ended and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction.

Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage.

Further details concerning protection of personal integrity under Articles 11 et seq. of the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04,13 June 2006).

8. Code of Civil Procedure (Law no. 99/1963, as amended)

Articles 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides.

COMPLAINTS

1. The applicant complained under Article 8 of the Convention that his telephone communications had been interfered with and that the interference had not been “in accordance with law” and “necessary in a democratic society”.

2. The applicant also complained that under the legislation existing at the relevant time there had not been any legal rules for identifying which specific court was competent to authorise or otherwise deal with the wiretapping of his phone. He alleged a violation of his right under Article 6 of the Convention to a tribunal established by law.

THE LAW

1. The applicant complained that the interference with his telephone communications had been contrary to Article 8 of the Convention, which, in so far as relevant, provides:

“1. Everyone has the right to respect for his private ... life, ... and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government submitted that the complaint was inadmissible for failure to exhaust domestic remedies as the applicant had not raised his complaint by way of an action for protection of his personal integrity under Articles 11 et seq. of the Civil Code. In their view, such an action would have enabled the applicant to raise any of the arguments and complaints he was now submitting before the Court.

Notwithstanding that argument, the Government admitted that the applicant’s phone had been tapped and that this had amounted to an interference with his right to respect for his private life and correspondence under Article 8 of the Convention. In their view, the interference had been lawful and justified.

The Government pointed out that there had been an extensive investigation of criminal activities within the industrial group with which the applicant was associated. He had been seeking inside information about the investigation and had been in active communication with I.C., who had been charged with an “extremely serious criminal offence”. It had been necessary to tap his phone in the interests of conducting an effective investigation. The tapping had been carried out under the Police Corps Act and had been duly authorised by the appropriate judge. The matter fell within the jurisdiction of the regional courts on the basis of Ministerial Decree no. 66/1992 Coll. The fact that there was no written legal rule as to which specific regional court had territorial jurisdiction in the matter had no impact on the effectiveness and independence of the judicial supervision that had been carried out in the applicant’s case. The legality of the tapping had moreover been examined and upheld by the Inspection Service. There could therefore be no doubt about it.

The Government lastly submitted that there was a system of effective control in place in order to prevent abuse and that the applicant had had the full benefit of this system. In particular, the law clearly defined the category of offences in connection with which wiretapping was permissible; telecommunications between a lawyer and a defendant in criminal proceedings enjoyed a privileged status; tapping could only be carried out with the consent of a judge, which was always valid for a limited period and never for more than six months; the police and the authorising judge had to examine on a continuous basis whether the grounds for the tapping still existed; the tapping was to be stopped immediately once such grounds were no longer present; and the information obtained by means of the tapping was protected and could be used only for detecting criminal activities.

The applicant contended that he had complied with the exhaustion rule in Article 35 § 1 of the Convention and that the remedy referred to by the Government, namely the action for protection of personal integrity, was not applicable to the circumstances of his case. To that end, he argued that that remedy applied only to legal relationships which were civil in nature. However, the tapping of his phone had been carried out on the basis of a public–law instrument, the Police Corps Act, and had involved the exercise of State power. The legal situation created by it was thus not of a civil-law nature and fell outside the jurisdiction of the ordinary courts, as defined in Article 8 of the Code of Civil Procedure.

Furthermore, the applicant submitted that until reading the observations of the Government on the present application he had had no official information confirming the tapping. Until then it had been unknown to him who, and on what grounds and to what extent, had requested, authorised and carried out the tapping. Thus, even assuming that the circumstances of his case could in theory fall within the purview of an action under Article 11 of the Civil Code, it would have been impossible for him to bring such an action in reality for lack of information.

As to the merits of the complaint, the applicant claimed that the interference with his Article 8 rights had consisted not only in tapping his phone, but also in recording his phone calls, making transcripts and copies of the recordings and making the obtained information available to third parties.

The applicant emphasised that he had not committed any criminal or other offence and had never been charged. There could not have been any legitimate reason for interfering with his phone calls. As to the Government’s argument concerning his connection to I.C., the applicant submitted that from the moment I.C. had been charged, the criminal proceedings concerning him had entered the preparatory stage. From that moment on, any official action or measure taken in those proceedings or in connection with them should have been governed by the Code of Criminal Procedure and not by the Police Corps Act. The applicant further objected that the Government had not only failed to make available the request for authorisation of the tapping but had also failed to prove by any other means that the request had complied with applicable requirements. These included, for example, the requirement to indicate a specific reason for the tapping and the goal to be achieved by it and to prove that it was not possible to achieve that goal by means other than tapping.

The applicant pointed out that even the judge who had authorised the tapping of his phone had acknowledged that there had been a lack of legal rules concerning the territorial competence of regional courts in matters concerning wiretapping. The rules contained in Decree no. 66/1992 Coll. did not apply to wiretapping under the Police Corps Act, and the Minister of Justice who had issued that Decree had had no legislative power to make rules relating to that Act. Furthermore, the rules adopted at the Ministry of Justice conference on 29 March 2000 did not have the form and quality of “law”, inter alia because they lacked the element of public accessibility.

The applicant also argued that that the existing legal framework did not afford him adequate and effective safeguards against abuse in that he was completely excluded from the decision-making process concerning the tapping of his phone; that he had no remedies in respect of it; and that there was no mechanism for independent scrutiny of the tapping under the Police Corps Act. Although the tapping required the consent of a judge and the judge had the duty to examine on a continuous basis whether the grounds for it persisted, neither the judge nor the Inspection Service had any means of checking how the tapping was being carried out in practice.

Lastly, the applicant contended that there had been no safeguards to identify telephone calls between him as a lawyer and criminal defendants as his clients. Although such calls enjoyed a strictly privileged status, the tapping had concerned his calls as a whole, including such privileged calls.

The Court must first examine whether the applicant complied with the exhaustion of domestic remedies rule under Article 35 § 1 of the Convention. The remedy to be considered here is an action for protection of personal integrity under Articles 11 et seq. of the Civil Code.

It should be noted that the existing concept of protection of personal integrity in Slovakia has its statutory basis in the original text of the Civil Code, which was adopted in 1964. Although since then there have been changes in social conditions and new trends in the legal environment, which have given rise to a need to regulate by law new types of relationships, in particular in the area of non-pecuniary damage to natural persons (see, for example, the following cases against Slovakia: Kučera (no. 48666/99), Pavletić (no. 39359/98), Tám (no. 50213/99), E.O. and V.P. (nos. 56193/00 and 57581/00) and Z.M. and K.P. (50232/99)), the concept of protection of personal integrity has primarily been applied by the courts in defamation actions (see Kontrová, cited above).

In the present case the applicant’s telephone calls were tapped under the Police Corps Act. The tapping had been officially requested by the police. The lawfulness of that request was examined and upheld by a judge, who authorised the tapping. The applicant was not notified of the authorisation and no remedy was available in respect of it. The tapping was then carried out by the police. The applicant was in no way involved in the procedure and had no information whatsoever about it and about its implementation.

In these circumstances, the Court cannot see how the applicant could have brought an action for protection of personal integrity with reasonable prospects of success (see, for example, V. v. the United Kingdom [GC], no. 24888/94, § 57, ECHR 1999-IX) against the judge who authorised the tapping or the police who implemented the authorisation. As regards the judge, it should be noted in particular that he had jurisdiction to grant the authorisation. As regards the police, it should be noted specifically that their actions concerning the request for authorisation were legitimised by the judge and that the tapping itself followed the judge’s authorisation, with no possibility of scrutiny by the applicant or by any other person or authority.

It follows that the Government’s plea of inadmissibility for failure to exhaust domestic remedies must be dismissed.

The Court considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It therefore concludes that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant also complained of a violation of his right to a tribunal established by law under Article 6 of the Convention, the relevant part of which reads as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a ... hearing ... by [a] ...tribunal established by law.”

The Court observes that Article 6 of the Convention applies only to proceedings which involve the determination of “civil rights and obligations” or of a “criminal charge”. There were no such proceedings in respect of the applicant in the present case.

It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be dismissed in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaint under Article 8 of the Convention concerning the interference with his telephone communications; and

Declares inadmissible the remainder of the application.

T.L. EARLY Nicolas BRATZA
Registrar President