Information Note on the Court’s case-law 95

March 2007

Heglas v. the Czech Republic - 5935/02

Judgment 1.3.2007 [Section V]

Article 8

Article 8-1

Respect for private life

Use in evidence of a recording of a conversation obtained by a body-mounted listening device and of a list of the telephone calls made: violations

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Use in evidence at trial of a recording of a conversation obtained by a body-mounted listening device and of a list of the telephone calls made: no violation

Facts : A woman was attacked and had her handbag stolen. The police arrested A.M. and took him into custody. Under the Code of Criminal Procedure (“the CCP”) a District Court judge ordered the surveillance and recording of calls made on the applicant’s mobile telephone. A.B., a girlfriend of A.M., arranged to meet the applicant. She was fitted by the police with a listening device hidden under her clothing. In the course of their recorded conversation, the applicant admitted that he had organised the robbery with A.M. The police dismissed the applicant’s request to exclude the recording of the conversation from the case-file, noting that it had been made in accordance with the law and with the consent of A.B. The City Court found the applicant and A.M. guilty of robbery and sentenced them to nine years’ imprisonment, whilst they protested their innocence. The court based its judgment on various testimony and documents, but one of the most important items of written evidence was the list of the telephone calls on the mobile phones of the two defendants. A transcription of the conversation between A.B. and the applicant was described as crucial evidence but was not the sole evidence against them. In response to the applicant’s plea that this evidence was unlawful, the court observed that A.B. had consented to the fitting of the listening devices and that, under the CCP, anything capable of shedding light on a criminal case could be used in evidence. The High Court dismissed appeals against the judgment at first instance, confirming that the previous findings were correct. The applicant also lodged a constitutional appeal, arguing that the production of the recording of his conversation with A.B. and its use as evidence, incriminating the applicant before he had been notified of any charge, had breached Articles 6 and 8 of the Convention. The telephone company informed A.M. that the list of telephone calls had been produced at the request of the authorities in connection with a criminal investigation, under a provision of the CCP. It further referred to a provision from the Telecommunications Act. The Constitutional Court dismissed the applicant’s appeal, holding, among other considerations, that the courts had convicted him on the basis of various evidence which had been lawfully obtained and assessed. As to the use of the listening and recording device hidden on A.B., the Constitutional Court agreed with the High Court that it was not a prohibited measure under the CCP. It considered, however, that the recording should not have been used in evidence in the criminal proceedings, but that it did not render unconstitutional the decisions adopted in those proceedings as the applicant’s conviction had been based on a number of items of evidence. The Constitutional Court declared manifestly ill-founded a constitutional appeal by A.M.

Law : Article 8 – The use of the extract from the list of telephone calls as evidence in the criminal proceedings had interfered with the applicant’s right to respect for his private life. The interception and recording of the telephone conversations had been ordered by a district court judge under the CCP and the list of calls in question had been produced at the request of the police in accordance with provisions of the CCP and of the Telecommunications Act. However, the relevant provisions had not yet entered into force at the material time. It followed that the interference observed had not been in accordance with the law.

Conclusion : violation (unanimously).

The recording of a conversation using a device fitted under a person’s clothing by the police authorities and its subsequent use had also interfered with the applicant’s rights. The domestic authorities had not been clear as to the legal basis on which the recording had been made. The measure had not been governed by a law satisfying the criteria laid down by the Court’s case-law, but rather by a practice which could not be regarded as a specific legal basis setting forth sufficiently precise conditions for such interference as regards the admissibility, scope, control and use of the information thus collected.

Conclusion : violation (unanimously).

Article 6 – The applicant had been able to submit to the first-instance court, then to the High Court and to the Constitutional Court, all the observations deemed necessary concerning the recording made without his knowledge. The same arguments were valid as regards the use in evidence of the chronological list of telephone calls. The applicant had been convicted after adversarial proceedings. Moreover, the impugned recording and list had contributed, and had even been crucial, to the preparation of the City Court’s judgment, but it had not been the sole evidence on which the court had based its inner conviction. As regards the weight of the public interest in the use of such evidence to obtain the applicant’s conviction, the measure had been taken against a person who had committed a serious offence to the detriment of a third party and who had ultimately received a nine-year prison sentence. Accordingly, the use by the domestic courts of the impugned recording and the list of telephone calls had not infringed the applicant’s right to a fair trial.

Conclusion : no violation (unanimously).

Article 41 – Non-pecuniary damage: the finding of violations was sufficient.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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