Communicated on 9 December 2020 Published on 11 January 2021

SECOND SECTION

Application no. 64301/19 LIETUVOS ADVOKATŪRA and Others against Lithuania lodged on 10 December 2019

SUBJECT MATTER OF THE CASE

The applicants are the Lithuanian Bar Association, its chairman, deputy chairman and its executive secretary.

In April 2019 the four applicants asked the State authorities – the Special Investigation Service, the Attorney General ’ s Office and the Police Department – whether between 2015 and 2019 any criminal intelligence actions, such as, but not limited to, interception of communications, had been undertaken against the applicants, outside of any criminal investigation in their regard. The State authorities refused to provide such information referring to reasons of confidentiality.

The applicants then challenged the refusal before the president of the Vilnius Regional Court, who dismissed the applicants ’ appeal by a ruling which was final.

Under Article 6 § 1 of the Convention the applicants complain that a person who brings court proceedings in order to learn whether he or she has been subjected to interception of communications, which could have amounted to a breach of that person ’ s rights, has no prospects to have such information revealed in the court. The applicants submit that any claims against the intelligence agencies ’ actions are examined by the courts only formally, referring to the letter of the law, rather than by obtaining evidence and examining factual circumstances. This, in the applicants ’ view, amounts to a breach of the right to a fair hearing. The applicants provide statistical information to the effect that from 2017 to 2019 the courts granted more than 99 per cent of the requests by law enforcement authorities for interception of communications. Such statistics supports the applicants ’ view that effective judicial control of those who perform criminal intelligence actions is non-existent.

In this context the applicants also point out that the first instance court ’ s decision is not amenable to appeal.

Under Article 8 of the Convention the applicants complain that measures of secret surveillance, which, given the applicants ’ institutional role and function when protecting human rights at the domestic level, possibly had been applied against them, breached their right to respect for private and family life.

Under Article 13 of the Convention the applicants complain that persons in respect of whom criminal intelligence actions, such as interception of their communications, are being undertaken have no possibility to know whether such actions had ever taken place. They assert that there is no effective independent and impartial judicial control of the intelligence services ’ actions which may breach persons ’ rights.

QUESTIONS TO THE PARTIES

1. Do the facts of the case disclose a breach of Article 6 § 1 of the Convention? In particular, were the proceedings as a whole fair, within the meaning of that provision, notably in view of the manner in which evidence (witnesses, secret materials, etc.) has been examined and of the reasons given by the court in its ruling (see, for instance, Regner v. the Czech Republic [GC], no. 35289/11, §§ 146149, 19 September 2017, with further references)?

2. Can the applicants claim to be victims of violation of their rights under Article 8 (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 164-72, ECHR 2015)?

Has there been an interference with the applicants ’ right to protection of their right to “private life” and “correspondence”, within the meaning of Article 8 of the Convention, with regard to possible interception and recording of their communications or their surveillance (see Weber and aravia v. Germany ( dec. ), no. 54934/00, §§ 78 and 79, ECHR 2006 ‑ XI, Liberty and Others v. the United Kingdom , no. 58243/00, § 56, 1 July 2008, and the cases cited therein)?

If so, have the guarantees provided for in Article 8 § 2 of the Convention been observed, notably in respect of the lawfulness of the measure and the safeguards against abuse (see , for general principles, Rotaru v. Romania [GC], no. 28341/95, § 47, ECHR 2000 ‑ V, Iordachi and Others v. Moldova , no. 25198/02, §§ 37-40, 10 February 2009, and the case-law cited therein)?

3. Did the applicants have an effective remedy regarding their complaint of interception of their communications and management of any recorded data (see Klass and Others v. Germany , 6 September 1978, §§ 62-65, Series A no. 28, see also, mutatis mutandis , Rotaru v. Romania [GC], no. 28341/95, §§ 67-69, ECHR 2000 ‑ V, and DrakÅ¡as v. Lithuania , no. 36662/04, § 68, 31 July 2012)?

Has there been a violation of Article 13 of the Convention?