Information Note on the Court’s case-law No. 89

September 2006

Coban v. Spain (dec.) - 17060/02

Decision 25.9.2006 [Section V]

Article 8

Article 8-1

Respect for family life

Respect for private life

Tapping of telephone lines in the course of a criminal investigation and use in the subsequent trial of conversations intercepted in this manner: inadmissible

The applicant, a Turkish national, was a suspect in a large-scale investigation into drug trafficking conducted by the Spanish Criminal Investigation Police. The investigators obtained permission to tap a number of telephone lines, including some used by the applicant. On 19 October 1996, following intensive police investigations, the applicant and a number of fellow-suspects were arrested by the police, who seized several kilograms of heroin hidden in a car used by members of the gang, together with a considerable sum of money. On 21 October 1996 the applicant was interviewed by senior police officers in the presence of assigned counsel. On 22 October he appeared before an investigating judge of the Audiencia Nacional , assisted by counsel and by an interpreter appointed by the judge’s clerk. The applicant signed the record, indicating that he agreed with its content. Following the judge’s investigation he was committed to stand trial before the criminal division of the Audiencia Nacional , together with a number of other individuals involved in the trafficking. On 10 December 1998, after adversarial proceedings and a public hearing, the applicant was found guilty of drug trafficking and forgery of official documents. He was sentenced to nineteen years’ imprisonment and ordered to pay a number of fines. The Audiencia Nacional based his conviction on passages from recordings by the police of conversations in Spanish, on the statements given by the accused, on the experts’ reports and on other evidence gathered during the investigations. It further considered that the telephone tapping had been carried out, at all stages, in strict compliance with the conditions laid down by the case-law of the Supreme Court and the Constitutional Court. The applicant appealed on points of law to the Supreme Court, alleging that a number of constitutional principles had been infringed, in particular the principle of the presumption of innocence and his right to use relevant evidence in his defence. He also complained that the phone tapping carried out during the judicial and police investigations had infringed his right to the confidentiality of telephone communications. He further alleged that, during his detention, he had not been informed promptly and in a comprehensible manner of his rights and the grounds for his detention. In a judgment of 18 July 2000, after adversarial proceedings, the Supreme Court replied in detail to the applicant’s arguments and upheld the judgment under appeal. Relying on Article 24 (right to a fair trial and to the presumption of innocence), Article 18 § 3 (respect for confidentiality of telephone communications) and Article 17 § 3 (right to be informed promptly and in a comprehensible manner of one’s rights and the grounds for being detained) of the Constitution, the applicant lodged an amparo appeal with the Constitutional Court. That court, in a decision of 25 February 2002 containing detailed reasons, did not find fault with the making or use of the telephone recordings and found the appeal inadmissible as being manifestly ill-founded.

Inadmissible under Article 8 – The interception of telephone conversations constituted interference with the exercise of a right secured by Article 8. It was thus necessary to examine whether that interference was “in accordance with the law”, pursued one or more legitimate aims and was necessary in a democratic society for the fulfilment of those aims. As to the first condition, the impugned interference certainly had a statutory basis in Spanish law, namely in Article 579 of the Code of Criminal Procedure as amended by an Institutional Act of 25 May 1988. The Act was accessible but the legislation also had to be foreseeable in terms of its interpretation and the nature of the applicable measures. According to the Court’s case-law, the “law” was the enactment in force as interpreted by the competent courts. Moreover, in the context of secret measures of surveillance or interception by public authorities, an absence of public scrutiny and the risk of an abuse of authority implied that domestic law had to afford the individual a certain protection against arbitrary interference with the rights guaranteed by Article 8. The law therefore had to be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions under which public authorities were empowered to take any such secret measures. In the present case, the tapping of telephone conversations had been authorised by the judicial authorities between December 1995 and October 1996, well after the legislative amendment of 1988. The amendment had also gradually been supplemented by the case-law of the Supreme Court and Constitutional Court, which had specified what safeguards were required in such matters. The Supreme Court decision of 18 June 1992 in particular, supplemented by the subsequent case-law of the Constitutional Court, had filled the legal vacuum that had previously been noted by those two courts. From that date onwards the foreseeability of the law, in the broadest sense, could not therefore be called into question. Accordingly, even though a legislative amendment incorporating into domestic law the principles deriving from the Court’s case-law would have been desirable, Article 579 of the Code of Criminal Procedure, as amended by the Institutional Act of 25 May 1988 (Law no. 4/1988) and supplemented by the case-law of the Supreme Court and Constitutional Court, laid down, before the material time, clear and detailed rules, establishing with sufficient clarity the scope and conditions of exercise of the authorities’ discretion in such matters. Moreover, the interference had pursued the legitimate aim of the prevention of disorder. As to its necessity, the telephone tapping had been presented as one of the main investigative measures that had helped to prove the involvement of various individuals, including the applicant, in large-scale drug-trafficking. The applicant had also had the benefit of “effective control” of the interception of his telephone calls; he had appealed to the Supreme Court on points of law concerning that complaint, among others, and had lodged an amparo appeal with the Constitutional Court. Those two courts had noted that the telephone tapping had been authorised by well-reasoned decisions and had been subject to clear scrutiny applied in accordance with the rules. As to the judicial supervision of the telephone tapping, and in particular the allegation that it had been impossible to extend this supervision to foreign-language conversations, together with the lack of transcriptions by a sworn translator and the fact that the results of the telephone tapping had been filed in the proceedings, the Court found that the participation of an interpreter who had sufficiently reliable knowledge of the source language rendered the interpretation of foreign- language conversations valid, even if the translation was in summary form or consisted in extracts from a conversation. In the present case, the court had listened to the original recordings and the conversations submitted at the hearing as evidence for the prosecution had been heard in open court and had been subject to adversarial debate at the trial stage. Moreover, those conversations were in Spanish. Furthermore, the intercepted conversations had been authenticated by verification of the recordings in comparison with the transcriptions. The applicant had therefore had the benefit of “effective control”, as required by the rule of law, capable of limiting the impugned interference to what was “necessary in a democratic society”. There was nothing in the case file to indicate any appearance of a violation by the Spanish courts of the right to respect for private life, as guaranteed by Article 8 of the Convention: manifestly ill-founded .

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

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