Communicated on 21 February 2018

THIRD SECTION

Application no. 25592/16 X against Slovakia lodged on 4 May 2016

STATEMENT OF FACTS

1. The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4). The applicant is represented before the Court by Škubl a & Partneri s.r.o ., a law firm with its registered office in Bratislava.

The circumstances of the case

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

1. Background

3. The information available indicates that in 2005 and 2006 the applicant was the object of interest to the Slovakian Intelligence Service (“the SIS”) and that this interest was reflected in three judicial warrants issued by the Bratislav a Regional Court authorising the SIS to take surveillance measures concerning him, a flat belonging to him, and another person (“the first warrant”, “the second warrant” and “the third warrant”, respectively). The first and second warrants are the subject matter of two other applications lodged by the applicant (nos. 58361/12 and 27176/16) as well as three applications lodged by the other person (nos. 58359/12, 27787/16 and 67667/16) pending before the Court.

4. The present application concerns the third warrant, issued by the Regional Court on 26 January 2006 following an application by the SIS of the same date. The information available indicates that the third warrant authorised the SIS to use “technical means of gathering intelligence in the process of production and use of video, audio and other recordings in relation to the applicant in a flat owned by him at a given address”. The use of such means under the third warrant was authorised until 26 July 2006.

5. The third warrant was implemented by the SIS between 26 January and 26 July 2006. Its implementation resulted in original and derivative material. The former is understood to be a recording and the latter to be material based on it (summaries and analytical notes). Such material has been kept in the domain of the SIS.

6. Moreover, some further material based on or linked to the third warrant has been kept in the domain of the Regional Court. It may be presumed that that material consists of the SIS ’ s application of 26 January 2006 for the third warrant and the SIS reports of 16 June 2006 on its implementation and of 1 August 2006 on the discontinuation of its implementation.

7. In a separate set of proceedings the applicant partly succeeded with a complaint to the Constitutional Court, in that he obtained a constitutional judgment of 20 November 2012 annulling the first and second warrants in so far as they concerned him on account of their incompatibility with his rights to a fair hearing and to respect for his private life.

The Constitutional Court found the warrants unjustified and unlawful as they lacked several fundamental elements.

However, the Constitutional Court held that it had no jurisdiction in respect of the SIS because the supervision of SIS operations authorised by the Regional Court was within the jurisdiction of that court. For similar reasons, the Constitutional Court had no power to order the destruction of material produced as a result of the surveillance operation under the first and second warrants, which was in the domain of the SIS. The relevant part of the complaint was thus inadmissible.

As to the applicant ’ s claim that, on the basis of the annulment of the warrants, the Constitutional Court should order the destruction of any material linked to the operation in question existing in the Regional Court ’ s own domain, the Constitutional Court observed that the material “was in court files, did not originate from the actions of the Regional Court and was not the product of secret surveillance, or was so at most partly and indirectly”. Furthermore, the Constitutional Court pointed out that the admissible part of the complaint only concerned the first and second warrants and the procedure in respect of them. It concluded that, in such circumstances, the annulment of the warrants could not serve as a basis for ordering the Regional Court to destroy the material in question.

2. The applicant ’ s response

8. Relying on the constitutional judgment of 20 November 2012, the applicant made several unsuccessful submissions to the Regional Court, the SIS and other institutions aimed at ensuring the destruction of any primary, derivative and other material resulting from the implementation of the warrants. As for the third warrant, he argued that although it had not yet been formally annulled, on substance it was vitiated by exactly the same shortcomings as the first and second warrants, as a result of which it should be considered a legal nullity ( paakt ). The responses included the following.

9. In a letter of 17 February 2015 the President of the Regional Court concluded that the statute provided no basis for a duty on the part of a judge to take any action with a view to having material produced by surveillance measures under a judicial warrant destroyed. The letter further stated that a judge of the Regional Court had nevertheless asked the SIS on 28 October 2013 to produce transcripts of the recordings made under the first and second warrants “in order to be able to destroy them in an appropriate manner”. In that respect, however, on 9 May 2014 the SIS had given an “unclear answer”. As for the third warrant, the President of the Regional Court pointed out that until then it had not been annulled.

In a letter of 17 April 2015 the Ministry of Justice endorsed the position taken by the President of the Regional Court to the effect that there was no legal basis for any duty on the part of a judge to take action with a view to having material resulting from an authorised surveillance operation destroyed. In addition, the Ministry confirmed the view that the exercise of a court ’ s jurisdiction in respect of surveillance warrants came to an end when that court was informed by the agency implementing such warrants that their implementation had been terminated.

In a letter of 19 November 2015 in response to a request from the applicant, the President of the Regional Court held, inter alia, that there was no legal basis for ordering the SIS to discontinue the use of and to destroy any material resulting from the implementation of the three warrants. Nor was there any statutory duty on the part of the agency implementing a surveillance warrant to submit to the court which had issued the warrant the record of the destruction of material resulting from such implementation.

3. Constitutional proceedings

10. On 30 July 2014 the applicant lodged a complaint with the Constitutional Court under Article 127 of the Constitution. The complaint was directed against the Regional Court and the SIS, in respect of the third warrant, and concerned, inter alia, the applicant ’ s rights to a fair hearing before a tribunal established by law and to respect for his private life. In particular, the applicant complained of arbitrariness in the issuance and implementation of the third warrant and the production, maintenance and failure to destroy material resulting from the implementation of the warrant. Among many other arguments, he relied on a document of the Regional Court of 6 March 2014 observing that when the three warrants had been issued, the Regional Court had not had at its disposal technical equipment required by law for the processing of classified information. As a result, such warrants had de fac to been produced by the agency applying for them.

11. On 28 April 2015 the applicant lodged a fresh constitutional complaint directed against the Regional Court. Relying on Articles 6 and 8 of the Convention, among other provisions, he argued, inter alia , that the third warrant was a legal nullity. He alleged that there had been unjustified delays in the exercise of the Regional Court ’ s jurisdiction in relation to what he considered to be a duty on the part of the SIS to destroy any material resulting from the implementation of the third warrant in the presence of a judge and that there was a general lack of effective control over surveillance measures.

12. The Constitutional Court joined those and other complaints in to one set of proceedings. On 6 October 2015 it declared them admissible in so far as they concerned the proceedings before the Regional Court in relation to the third warrant and the issuance of that warrant, and inadmissible as to the remainder.

13. As to the inadmissible complaints, the Constitutional Court held, inter alia , that it had no jurisdiction in relation to actions of the SIS since that jurisdiction rested with the Regional Court as the court having issued the third warrant. Having regard to the current state of the Regional Court ’ s proceedings concerning that warrant, it considered the applicant ’ s complaint about the alleged violation of his right to an effective remedy in those proceedings as premature. The remainder of the applicant ’ s complaints concerning the third warrant was found to be manifestly ill-founded, with a mere reference to the Constitutional Court ’ s findings in relation to the first and second warrants.

As to the applicant ’ s specific contention that the SIS had failed to discharge its duty to inform him of the destruction of the primary and any other products of the implementation of the three warrants, the Constitutional Court noted that the statute provided no basis for any such duty. However, as unlawful interference by the State with the privacy of individuals was a serious matter, it was for the lawmaker to define precisely not only the conditions for the use of technical means of gathering intelligence but also the conditions on which an individual could learn of the warrants to carry out such measures and of their discontinuation.

14. The Constitutional Court ’ s decision of 6 October 2015 was served on the applicant on 12 November 2015.

15. In the course of the constitutional proceedings, the Regional Court as the defendant of the admissible part of the complaint submitted observations in reply to it. As later referred to by the Constitutional Court in its judgment (see below), in those observations the Regional Court stated, inter alia , that the SIS had applied for the third warrant because it considered it necessary to be able to gather information about “matters susceptible seriously to jeopardise or damage the economic intere sts of the Slovak Republic”. In the same observations, the Regional Court further submitted:

“[The SIS] had not advised the [Regional] court about the specific matters concerned. [The SIS] indeed did not submit to the [Regional] court any records obtained by [the carrying out of the warrant] or minutes of the destruction of any records so obtained.

...

... it is necessary to observe that the Regional Court issued the warrant in a procedure that was common at that time, without proper reasoning, though with reference to the application [by the entity making it] and under the respective provisions of the [Privacy Protection Act]. The procedure mentioned was not governed by any procedural rules at the relevant time.”

16. The merits of the admissible part of the applicant ’ s complaint were determined in a constitutional judgment of 2 February 2016. Referring to the conclusions in its judgment of 20 November 2012 as regards the first and second warrants, the Constitutional Court found a violation of a number of the applicant ’ s rights, including those under Articles 6 and 8 (private life) of the Convention, and annulled the third warrant.

In particular, the Constitutional Court noted that the Regional Court had issued the third warrant despite the fact that the SIS ’ s application for it did not define the specific technical means of gathering intelligence to be used and for which specific purpose. The mere reference in it to the statutory provisions concerned was insufficient in that context. Moreover, the Regional Court had failed to examine whether it had been impossible to achieve the aim of the warrant by other less intrusive means and whether the authorisation for those measures extended to premises inaccessible to the public. In addition, the indication of the time frame for the SIS to inform the court that the reasons for the warrant persisted had been written illegibly. On those grounds, the Constitutional Court found the third warrant unlawful and unjustified. Furthermore, it could not be established from the warrant which specific judge had issued it. The Constitutional Court considered this to be a particularly serious shortcoming, rendering it impossible to establish whether the warrant had actually been issued by a lawful judge.

The Constitutional Court also noted that, according to observations submitted by the SIS, the primary and derivative material in its domain resulting from the implementation of the third warrant had not yet been destroyed. In that connection, the Constitutional Court confirmed that, in such circumstances, it was incumbent on the Regional Court, in the exercise of its statutory duty to supervise the implementation of surveillance warrants issued by it, to ensure that the SIS destroyed any primary material resulting from it. As to the derivative material, it could not be destroyed but had to be deposited in a manner specified by section 17(6) of the SIS Act. Under that provision, such material had to be deposited by the SIS “in a way that excluded access to it by anyone”. As any duties on the part of the Regional Court in this context stemmed directly from the statute, there was no need for the Constitutional Court to issue any orders in that respect. Referring to the same grounds, the Constitutional Court dismissed the applicant ’ s contention that there had been unjustified delays in the exercise of the Regional Court ’ s jurisdiction in this matter.

17. The constitutional judgment of 2 February 2016 was served on the applicant on 29 February 2016 and no appeal lay against it.

COMPLAINTS

18. The applicant complains under Article 8 (private life), alone and in conjunction with Article 13 of the Convention:

(i) that he was subjected to the use of technical means of gathering intelligence authorised under the third warrant;

(ii) that there was no effective supervision of the implementation of the third warrant at the time of its implementation;

(iii) that the implementation of the third warrant resulted in the production of primary, derivative and other material;

(iv) that the material produced by the implementation of the third warrant continues to exist, has not been destroyed, and a part of it cannot be expected to be destroyed in view of the provisions of section 17(6) of the SIS Act, as interpreted by the Constitutional Court;

(v) that there has been no retrospective review of the implementation of the third warrant, including of the question of the continued existence of material produced as a result of the implementation of the warrant; and

(vi) that there is no effective remedy available to him in that respect.

QUESTIONS TO THE PARTIES

1. In connection with the implementation of a third warrant, and the creation and continued existence of, and failure to destroy, material in the domain of the Regional Court and the SIS resulting from its implementation, has there been an interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

If there has been such an interference, was it in accordance with the law and necessary in terms of Article 8 § 2, taking in to account also, but not only, the applicant ’ s claims ( i ) that there was no effective real-time supervision and retrospective review of the implementation of the third warrant; (ii) that primary, derivative and other material resulting from the implementation of the third warrant has not been destroyed and continues to exist in the domain of the Regional Court and the SIS; and (iii) that there is no prospect of material resulting from the implementation of the third warrant and falling within the purview of section 17(6) of the SIS Act being destroyed?

2. Did the applicant have at his disposal an effective domestic remedy for his above complaints under Article 8, as required by Article 13 of the Convention?