Published on 20 June 2022

THIRD SECTION

Application no. 840/21 José María FUSTER-FABRA TORRELLAS against Spain lodged on 23 December 2020 communicated on 3 June 2022

SUBJECT MATTER OF THE CASE

The applicant is a lawyer living in Barcelona. Through a Spanish newspaper ( El Mundo ) he became aware that on 26 October 2017 the National Police Force ( Policía Nacional ) had seized documents concerning investigations carried out by the Mossos d’Esquadra (Catalan autonomous police force) against persons who opposed the Catalonia independence. He was among the persons concerned.

The applicant lodged a criminal complaint against Mossos d’Esquadra for conducting an investigation on account of his political opinions and activities. The applicant noted that the seized documents included information about the police surveillance over his movements in public spaces, photographs and information about his private life, while no criminal or administrative proceedings have ever been instituted against him. In particular, the documents concerned the events of 6 and 7 June 2017 in public spaces, his meetings with members of anti-independence political parties and social entities. Another seized document reported about a demonstration which had taken place in Barcelona on 19 March 2017. It identified the demonstration’s participants and their affiliation with anti-independentist organisations.

The applicant and other persons under similar circumstances sought a number of investigative measures, including determination of those responsible for such surveillance. All such complaints were joined and assigned to one investigating judge.

Most of the investigative measures sought were rejected by the investigating judge. The judge decided that the chief commissioner of the Information Service of Mossos d’Esquadra should be heard as a witness, after giving him access to the criminal file. The applicant contested that decision, arguing that the chief commissioner should give evidence as a suspect without previously accessing the file and that other proposed investigative measures should be accepted. The investigating judge received a report from the Division of Internal Affairs of Mossos d’Esquadra including explanations about the purpose and procedure of the applicant’s surveillance.

After hearing the statement of the chief commissioner of the Information Service of Mossos d’Esquadra , the judge ruled that no criminal offence has been committed. The applicant challenged that decision, and Audiencia Provincial confirmed partially the decision of the investigative judge, explaining that although the facts could be considered within the scope of several criminal offences, there was not sufficient evidence to continue the investigation.

The applicant lodged an amparo appeal with the Constitutional Court, which was declared inadmissible on 29 July 2020 for lack of constitutional relevance.

He complains that Article 8 of the Convention was breached, as he was subjected to unlawful surveillance by Mossos d’Esquadra .

QUESTIONS TO THE PARTIES

1. Did the police surveillance of the applicant constitute an interference with his right to respect for private life within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law, pursued a legitimate aim and was necessary in a democratic society in terms of Article 8 § 2 (see Zoltán Varga v. Slovakia , nos. 58361/12 and 2 others, §§ 144-174, 20 July 2021; Szabó and Vissy v. Hungary , no. 37138/14, §§ 54-89, 12 January 2016; Catt v. the United Kingdom , no. 43514/15, § 112, 24 January 2019; and Libert v. France, no. 588/13, §§ 43-52, 22 February 2018)?

In particular, was the interference in accordance with the Spanish regulation of police surveillances (Criminal Procedural Law and Organic Law 2/1986, of March 13, on Security Forces and Bodies)?

If so, was the interference proportional to the legitimate aim pursued in the instant case?

2. Has there been a violation of Article 8 of the Convention on account of the response given by the investigating judge and the Barcelona Audiencia Provincial to the allegedly illegal police surveillance of the applicant ( see Roman Zakharov v. Russia [GC], no. 47143/06, § 171, ECHR 2015; Big Brother Watch and Others v. the United Kingdom [GC], nos. 58170/13 and 2 others, § 336-39, 25 May 2021; Khadija Ismayilova v. Azerbaijan , nos. 65286/13 and 57270/14, § 115, 10 January 2019; Alković v. Montenegro , no. 66895/10, § 65, 5 December 2017; and Söderman v. Sweden [GC], no. 5786/08, §§ 78-85, ECHR 2013) ?