Published on 13 February 2023

FIFTH SECTION

Application no. 51409/19 Michaela MACHARIK against the Czech Republic lodged on 24 September 2019 communicated on 24 January 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s criminal conviction based mainly on the content of her email communications with another convict, which the police had obtained following an order issued by a judge in November 2011 pursuant to Article 88a of the Code of Criminal procedure. The applicant argued throughout the criminal proceedings that such evidence had been obtained unlawfully since Article 88a, relating to data on telecommunication exchanges, provided no legal basis for the interference at stake.

The courts of four levels differed in their response to the applicant’s above argument: the first-instance court found that there had been only a formal shortcoming since the order should have been based on Article 88 relating to tapping and recording of telecommunication exchanges; the appellate court considered that the content of such exchanges could be secured under Article 88a; the Supreme Court was of the view that none of the above provisions were applicable but the impugned evidence had been lawfully collected since it could have been obtained pursuant to Article 158d relating to surveillance of persons and objects, nevertheless Article 88a was a specification of Article 158d and thus offered more guarantees; lastly, the Constitutional Court confirmed that although the judicial practice had been divergent at the time and the order should have been based on Article 158d, there had been no shortcoming in the instant case since Article 88a contained even stricter requirements for the interference.

The applicant claims under Article 8 of the Convention that her email communications were obtained without a proper legal basis, which cannot be provided only by a practice. Relying on Article 6 of the Convention, she complains that her criminal conviction was based mainly on the evidence obtained in breach of Article 8. She also claims that by failing to protect her fundamental rights, the Constitutional Court deprived her of an effective remedy within the meaning of Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the interference with the applicant’s right to respect for her correspondence, within the meaning of Article 8 § 1 of the Convention, in accordance with the law in terms of Article 8 § 2 ( Heglas v. the Czech Republic , no. 5935/02, 1 March 2007)?

Has there been a violation of the applicant’s right to respect for her correspondence, contrary to Article 8 of the Convention?

2. Given that the courts based their guilty verdict on the content of the applicant’s email communications which had, in her view, been obtained in breach of Article 8 of the Convention, did the applicant have a fair hearing in the determination of the criminal charge against her, in accordance with Article 6 § 1 of the Convention ( Bykov v. Russia [GC], no. 4378/02, 10 March 2009)?