PARTIALLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE PINTO DE ALBUQUERQUE

I agree with all but one of the findings of the majority, which is the finding of a violation of Article 8 of the European Convention on Human Rights ( “ the Convention ” ) with regard to the “ leak ” of the applicant ’ s conversation of 16 March 2003 with J . B . to the media. In addition, I cannot subscribe to the reasons given for finding a violation of Article 13 with regard to the absence of subsequent judicial review of the surveillance applied in respect of the applicant, although I do agree that there was a violation of th at Article.

D isclosure of conversations intercepted by the SSD

The majority censure the disclosure (or the “ leak ” ) to the media of the applicant ’ s conversation of 16 March 2003 with J . B . , arguing that the conversation, although declassified by the State Security Department (the SSD), was still confidential, in accord ance with Article 177 of the Code of Criminal Procedure. At the same time, the majority acknowledge the Government ’ s argument that the Lithuanian people had the right to be informed about acts committed by the P resident [1] . This line of reasoning is contradictory. Yet the Court ’ s case-law points unequivocally to the prevailing right in cases of this nature. The freedom to inform and the right to be informed prevail over the secrecy of criminal investigations when there is a clear public interest in the disclosure of confidential information . [2]

In the particular set of circumstances in this case, the information disclosed about the P resident and his accomplices was of clear public interest. The following four arguments justify this assertion: ( 1 ) the information disclosed was extremely serious and called in to question the normal functioning of a democratic society , and specifically the proper performance of the P resident ’ s function s ; ( 2 ) the information disclosed did not refer to any facts concerning the applicant ’ s, J.B. ’ s or the President ’ s private lives, since it only concerned the exercise of the President ’ s function s ; ( 3 ) the information disclosed was so relevant that it immediately caused the opening of impeachment proce edings against the President; and ( 4 ) the information disclosed was so important that it was used at a public hearing during the impeachment proce edings before the Constitutional Court, which found the President guilty of gross violations of the Constitution and a breach of his constitutional oath. [3]

Moreover, the Attorney General ’ s O ffice considered, after some initial hesitation, that the applicant ’ s conversations, including those with the President, had been tapped in accordance with the law [4] and decided not to open a criminal investigation into the “ leak ” of the information and its disclosure during a public hearing before the Constitutional Court [5] . No criminal action was ever taken against the journalists who on 2 November 2003 aired the recorded conversations, although they had had access to and made use of confidential information from pending criminal proce edings . No restrictions were placed on the disclosure of the recorded conversations when the public prosecutors sent the recordings and the corresponding transcripts to the Constitutional Court . By acting in this way , the Attorney General, his office and the prosecutors confirmed ex post facto the lawfulness of the disclosure of the confidential information on account of its clear interest to the Lithuanian people. This decision was not arbitrary. On the contrary, it conform ed to the European standard in view of the seriousness of the danger posed to the democratic regime in Lithuania at the mate rial time.

Finally, the disclosure of the recorded conversations cannot reasonably be imputed to the SSD, the prosecutors or the judges involved in the procedure. It would be precipitate to attribute to any of these institutions or persons the responsibility for a “ leak ” which could have been caused by third persons, such as employees of the provider of telecommunications services or any other persons who might have had access to the information transmitted to the SSD and later on to the Attorney General ’ s O ffice. It is not irrelevant to add that the recording of the phone conversation of 16 March 2003 was only declassified on 1 November 2003 and made public the next day , having been kept confidential during this period of more than seven months.

In view of the facts of the case, I cannot but conclude that Article 8 was not breached on account of the disclosure to the media of the applicant ’ s conversation of 16 March 2003 with J.B. The same conclusion applies a fortiori to the disclosure of his conversations during the Constitutional Court proceedings.

Review of phone tapping by the SSD

The majority also find a violation of Article 13 because the law did not provide for a subsequent judicial review. The Law on Operational Activities ( “ the LOA ” ) does provide for such a review but only if there is an “ appeal ” by the person under surveillance [6] , which means that the law does not envisage a subsequent automatic judicial review of the tapping of a person ’ s phone, performed by the judge o f his or her own motion after the interception has ended . This grave shortcoming was not repaired by the domestic courts in the subsequent proceedings, since the various efforts made by the applicant to contest the judicial order authorising the phone tapping were unsuccessful. Thus, the deficiency of the judicial oversight system lies not only in the practical inefficiency of the means of redress made available to the applicant in this particular case, but in the legal framework itself.

According to the Court ’ s jurisprudence, phone tapping performed by secret services with the purpose of protecting national security must be subjected to tight control s , with regard both to its authorisation and to its implementation [7] . In the context of covert measures of surveillance and intelligence gathering, the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and procedures according to which the authorities are empowered to resort to this measure, these conditions and procedures including the following :

(1) a definition of the categories of people liable to have their communications covertly intercepted;

(2) t he nature of the criminal offences or activities posing a threat to national security which may give rise to an interception order ;

(3) t he degree of reasonable suspicion that the person is involved in these offences and activities ;

(4) t he principle of necessity , according to which interception may be ordered only if the establishment of the facts by other less intrusive methods ha s proven unsuccessful or, exceptionally, if other less intrusive methods are deemed unlikely to succeed;

(5) a limit on the duration of such interception ;

(6) scrutiny by an independent body , such as a judge, which includes the examination of the case file and the assessment of the factual and legal grounds for the authorisation of the interception;

(7) t he procedure to be followed for examining, using, storing and destroying the data obtained , with a detailed description of the scope of the judge ’ s oversight during the implementation stage and after the interception has ended ;

(8) t he conditions to be fulfilled and the precautions to be taken when communicating the data to other parties ;

(9) t he duty to notify the person under surveillance of the interception when it is over , provided that the interests of national security are not endangered by such disclosure;

(10) s pecial guarantees with regard to the secrecy of lawyer-client, doctor-patient and priest-penitent communications .

Turning to the present case, it should be noted that, while in certain respects Lithuanian law comp lie s with the above requirements, in other respects it falls short. The law defines the purposes for which covert interception may be used: preventing or uncovering serious and less serious crimes, monitoring the activities of special services of other S tates, searching for missing persons, protecting persons from “ criminal influence ” or protecting the constitutional order, national independence, economic security, national security and S tate secrets [8] . Surveillance may only be allowed pursuant to a written application giving reasons, which may be made solely by the Attorney G eneral or the Assistant Attorney G eneral or the chief or deputy chief prosecutors of the regional prosecutors ’ offices, on the basis of the data submitted by the heads of the entities responsible for operational activities or their authori s ed deputies. The application must identify the persons and the objects to be placed under surveillance [9] . It must also set out the grounds “warranting a request to employ the operational acti vitie s” and “the aim of the investigation ” [10] . Finally, the application must specify the duration of the proposed surveillance [11] .

The order authorising the surveillance can be issued only under the authority of the presidents of regional courts or the presidents of the criminal divisions of such courts. This judicial authorisation must in principle be given before the surveillance has taken place [12] . Exceptions to the procedure outlined above are only possible in urgent cases: the authorisation is then given by one of the prosecutors referred to above. In this case, the prosecutor who has taken the decision must, within twenty-four hours, apply to the competent judge for confirmation of the grounds for the operation. If the judge does not confirm the prosecutor ’ s order, the interception must be terminated and the data gathered immediately destroyed [13] . Surveillance may be authorised for a maximum of three months. This tim e-li mit may be extended, but only pursuant to a fresh application and order [14] .

However , the LOA also reveals several serious shortcomings regarding the stage at which the interception of telephone communications is authorised . The extremely broad remit of the S S D includes “solving crimes and establishing the identi ty of the individuals who ... hav e already committed criminal acts”, this task overlapping with the investigative function of the public prosecutor in the context of criminal procedure [15] . Any “person preparing, committing or having committed a crime” falls within the category of persons who may be subjected to interception orders or any other operational investigation s , thus enlarging the list of eligible offences to almost every single provision of the Criminal C ode and other criminal laws [16] . The law does not elaborate on the degree of reasonableness of the suspicion against a person for the purpose of authorising interception or any covert surveillance measure. Nor does it contain the fundamental safeguard that interception should take place only when it is otherwise impossible to achieve the aims pursued .

In the instant case, the competent judge authori s ed the phone tapping based on several criminal activities “described in the request” and after having had access to the “case file (the operative information and other data)” [17] . The reasoning set out in the judge ’ s order also refers to the fact that other operative measures had already been exhausted without success. In spite of its regrettable succinctness, the phone - tapping order contained sufficient reasons .

The fact that the SSD intercepted conversations between the applicant and the President and that at least one of the conversations was from the President to the applicant does not prejudice the legality of the phone tapping. Article 6, paragraph 3 , of the LOA provides for an exceptional protective regime for the President, which can be considered a functional statutory privilege. Th is legal prohibition is not breached when the operational activity is ordered in respect of any other citizen and the State President is incidentally involved in the operational activity in question . This conclusion is obvious in the present case if one takes in to account the fact that the judge issuing the phone - tapping order was not in a position to guess which persons the applicant would be call ing : in other words, when he authori s ed the tapping of the applicant ’ s phone, the judge did not have the benefit of hindsight in know ing that the applicant would call the President and would be called by him. Hence, the judicial order for the tap ping of the applicant ’ s phone was legal and the interception remained legal until the end of the period authori s ed by the judge.

As to the stage at which the interception of telephone communications takes place , it appears that the judge issuing the order plays a very limited role. In order to examine whether sufficient safeguards exist during this second stage of the interception procedure, when the surveillance is actually carried out or has already ended, one has to take into consideration not only the legal framework, but the judicial practice itself.

The most serious defective feature of the LOA is the lack of an automatic review of the implementation of secret surveillance measures by a body or official that is external to the services deploying the means of surveillance and to the requesting public prosecutors [18] . Under Article 21 of the LOA, the requesting public prosecutor is in charge of the review of the lawfulness of the operational acti vitie s, having the power to obtain information concerning the conduct and results of the acti vitie s. In addition, the services actually deploying special means of surveillance perform an “internal review ” of the operational activities. There is no independent review of such matters as whether these services in fact comply with the judicial orders authorising the use of such means, or whether they faithfully reproduce the original data in the records. Similarly, there exists no independent review of whether the original data are in fact destroyed within the legal time - limit if the surveillance has proved fruitless. The judge who issued a surveillance order does not have to be informed when the use of special means of surveillance has ended, nor is there an y obligation to inform the issuing judge when the use of special means of surveillance has been discontinued before the end of the authorised period. The LOA makes no provision for acquainting the judge with the results of the surveillance and do es not com pel him or her to review whether the requirements of the law have been complied with . There are no regulations specifying with an appropriate degree of precision the manner for screening the intelligence obtained through surveillance, the procedures for preserving its integrity and confidentiality and the procedures for its destruction. If the intelligence gathered falls outside the scope of the application for the use of special means of surveillance and does not concern the private life of the persons under surveillance , no solution is provided for, the law only envisaging the destruction of data relat ing to the private life of the persons under surveillance when the information concerning the target of the operational activities has not proved to be true [19] .

The persons subjected to secret surveillance are not notified of this fact, since the law does not provide for notification of persons subjected to covert interception under any circumstances or at any point in time . The result of this is that, unless they are subsequently prosecuted on the basis of the material gathered through covert surveillance, or unless there has been a leak of information, the persons concerned cannot learn whether they have ever been monitored. The practical effect of the “appeal” provided for in Article 6, paragraph 9 , of the LOA is thus restricted, at least in theory, to these two situations. When the persons under surveill ance are not subsequently prosecuted and no leak occurs , they are unable to seek redress for unlawful interferences with their privacy.

The overall supervision of the system of secret surveillance is entrusted to Parliament , which exercises it through a specialised commi ttee . A parliamentary standing commi ttee is responsible for “ monitoring the protection of constitutional rights and freedoms in the course of operational activities” and “analys ing the grounds and expediency of operational activities” [20] . However, the manner in which Parliament effects its review is not set out in the law. It appears that the commi ttee does not have the power to review the lawfulness of each and every surveillance measure, including phone tapping, after it has ended and, in the event of its unlawfulness, to declare it null and void .

In the present case, the defective legal system was compounded by the omission of the national authorities, both at the administrative and at the judicial level, to provide the applicant with any legal avenue for impugn ing the legality of the phone - tapping order, the action taken subsequent ly to implement it and the resulting intercepted conversations. In spite of the fact that the applicant tried to lodge several “appeals” with the SSD, the public prosecution service and the courts, none of these institutions and persons accepted jurisdiction to deal with those complaints. To sum up , the national authorities left the applicant in a legal black hole, which breached his right to a remedy under Article 13 of the Convention.