PARTLY DISSENTING OPINION OF JUDGE KOSKELO

1. I have regrettably not been able to agree with the conclusion reached by the majority, to the extent that they have found no violation of Article 8 in the present case. I consider that the use, in the disciplinary proceedings against the applicant, of the records obtained by the previous interception of his telephone communications has not been subjected to the necessary level of scrutiny by the domestic courts, nor by our Court. Given the highly intrusive nature of such interception, and the associated risks of abuse, the approach taken is, in my view, a matter of concern, also in the light of the Court’s existing case-law.

2. To sum up the essential factual circumstances of the case, the applicant was first subjected to a criminal investigation based on suspicions of “corruption-related activity” in his dealings with the inmates of the prison of which he was the director. In connection with that criminal investigation, the interception of his telephone calls was authorised, repeatedly, until the maximum period for such a measure (one year) ran out. Apart from that, it appears that covert listening devices were also placed in the applicant’s office (see paragraph 9 of the judgment). In the end, the criminal investigation was discontinued on the grounds of a lack of incriminating evidence (see paragraph 10 of the judgment). Subsequently, however, the records obtained through the phone-tapping operation were released for further use in the context of an investigation into “the applicant’s disciplinary offences or misconduct in office” (see paragraph 25 of the judgment).

3. Under domestic law, such further use of the materials from the interception was in principle permissible, subject to the important reservation set out by the Constitutional Court in its ruling of 18 April 2019. According to this ruling (cited in paragraph 50 of the judgment), it is necessary to assess, in each case, whether the use of the information in question for the purposes of investigating misconduct in office of a corrupt nature is in line with the principle of proportionality, or whether the aims pursued could be achieved in a particular case by other, less restrictive means. In the present case, however, it is open to doubt whether such an assessment has taken place. In the light of the domestic decisions as cited in the present judgment, it appears that the domestic authorities relied on the fact that recourse to the interception measure in the context of the criminal investigation had been considered lawful (see paragraph 38 of the judgment). This, however, cannot be sufficient when it comes to an assessment of the further use of such materials outside the criminal investigation for the purposes of which the measure was authorised.

4. The interception of telephone conversations and/or other means of communication, which involves surveillance of the content of such communications, is an extremely intrusive measure of interference with the rights protected under Article 8 of the Convention. While there is no doubt that such interception measures may be necessary and justified in the context of criminal investigations into serious offences, any further use of the records of such interceptions, outside the context for the purposes of which those measures have been authorised, raises distinct issues from the point of view of the requirements of Article 8.

5. The Court has acknowledged that tapping and other forms of interception of telephone conversations constitute a serious interference with private life and correspondence which must, also in view of the inherent risks of abuse, be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject, especially as the technology available for use is continually becoming more sophisticated (see, for instance, Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-I, and Uzun v. Germany , no. 35623/05, § 61, ECHR 2010, with further references). Accordingly, in its case-law on the interception of communications in criminal investigations, the Court long ago developed certain minimum requirements, to be set out in law, in order to avoid abuses of power. They include a definition of the categories of people liable to have their telephones tapped by judicial order, the nature of the offences which may give rise to such an order, a limit on the duration of telephone tapping, the procedure for drawing up the summary reports containing intercepted conversations, the precautions to be taken in order to communicate the recordings intact and in their entirety for possible inspection by the judge and by the defence, and the circumstances in which recordings may or must be erased or the tapes destroyed, in particular where an accused has been discharged by an investigating judge or acquitted by a court (see Valenzuela Contreras v. Spain , 30 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ V).

6. Against this background, and in the light of contemporary principles relating to the protection of personal data in general, it seems clear that the question of safeguards concerning any further disclosure and use of intercepted information outside the context of criminal investigations also requires specific consideration. Indeed, the Court has held on many occasions that domestic law must afford appropriate safeguards to prevent any such use of personal data as may be inconsistent with the guarantees of Article 8 (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 103, ECHR 2008). There can be no doubt, in my view, that this requirement also applies to disclosure of the content of a person’s communications with other individuals. The need for sufficient safeguards against a risk of abuse, inherent in any system of secret surveillance, is also present in the context at issue here (compare Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria , no. 62540/00, § 93, 28 June 2007).

7. Accordingly, it cannot be sufficient for only the original interception of communications for the purposes of a criminal investigation, and its use in that context, to take place in compliance with Article 8. Any further disclosure and use of such information must also satisfy the requirements of lawfulness, necessity and proportionality.

8. It is easy to see how circumstances similar to the factual background of the present case might provide illustrations of the importance of a sufficiently rigorous approach in this respect. Where the interception of an individual’s communications has been authorised on the grounds of a criminal suspicion but no incriminating evidence has emerged, even if the interception has lasted a whole year (maximum duration), the handing-over of the information thus obtained for the purposes of non-criminal proceedings may give rise to legitimate questions about possible circumvention of the statutory constraints. In any event, the use of intercepted materials for purposes which, in themselves, could not have served as a basis for the authorisation of such investigation measures clearly requires specific safeguards to be put in place in law and to be effectively applied in practice.

9. Indeed, as already mentioned above, the Constitutional Court has acknowledged the need for a separate assessment of the necessity and proportionality of such further use of intercepted communications. Based on the reasoning in the domestic decisions, however, I am not convinced that in the present case such an assessment has actually taken place in any proper sense. In particular, whereas the criminal suspicions against the applicant had to do with his alleged dealings with prison inmates, the disciplinary proceedings concerned matters of a different nature, namely irregularities in the internal recruitment or promotion processes, in the acquisition of some mobile phones on behalf of the prison, and in the use of the prison car (see paragraphs 27 and 28 of the judgment). It is difficult to see how an investigation into the latter kinds of misconduct in the prison administration could reasonably have depended on information obtained by the interception of the applicant’s telephone communications.

10. In my view, the domestic authorities have not put forward relevant and sufficient reasons, as should be required, to explain and justify the necessity and proportionality of the disclosure and use of the intercepted information for the purposes of the disciplinary investigation. I therefore consider that there has been a violation of Article 8 in this respect.