Published on 9 October 2023

FIRST SECTION

Application no. 6796/23 Ján TATIČ against Slovakia and 5 other applications (see list appended) communicated on 18 September 2023

SUBJECT MATTER OF THE CASE

The applicant, Mr J. Tatič [Jr.] is serving a prison sentence in Leopoldov. The other applicants are his relatives or other persons close to him. They appear to be maintaining regular contact with him, including by telephone.

The applications concern the legal framework embodied in the Execution of Prison Sentences Act (Law no. 475/2005 Coll, as amended, “the Act”) and Order ( rozkaz ) no. 8/2016 of the Minister of Justice on Conditions for the Monitoring and Recording of Telephone Communication of Charged and Convicted Persons, as amended (“the Order”), imposing or allowing the following measures to be taken with regard to inmates’ telephone communication, with the exception of telephone communication with a lawyer.

In particular, all other telephone communication of inmates may be recorded ( zaznamenávanie telefonického hovoru – section 27(3) of the Act and sections 2(2) and 3(4) of the Order) and such recordings kept for twelve months (section 27(3) of the Act). The recording of metadata concerning telephone communication is provided for under section 27(4) of the Act. In both instances (recording of the communication and the metadata), the Act refers to the given measures as optional, whereas the Order indicates that they are taken as a matter of course.

The system used for the recording is supplied by the private contractor in charge of operating the non-public telephone network for inmates (section 2(2) of the Order).

Recorded communication may subsequently be heard ( vypočutie telefonického hovoru - section 2(3) of the Order). Telephone communication may also be heard in real time ( monitorovanie telefonického hovoru – section 2(1) of the Order). Telephone communication heard in real time or from a recording is subject to assessment ( vyhodnocovanie telefonického hovoru - section 2(4) of the Order)) with a view to determining any measures to be taken to ensure that the purpose of the detention is achieved.

Recorded telephone communication and related metadata may be made available to the courts, the public prosecution service, the police, various intelligence agencies and other institutions upon their written request (section 27(5) of the Act and section 5 of the Order, in conjunction with section 65a(2) and (3) of the Prison and Court Guard Service Act (Law no. 4/2001 Coll., as amended)).

The hearing of telecommunication in real time and from a recording is subject to the prison director’s approval, upon a reasoned written proposal by the prison’s Service for Prevention and Security (section 3(3) and (5) of the Order). Approval for the hearing of telecommunication in real time is valid for three months (section 4(10) of the Order).

Section 27(3) of the Act links the “entitlement” of the management of the given prison facility to record and hear telephone communication of inmates in real time to the following purposes: (i) to combat terrorism and organised crime, (ii) to prevent the fulfilment of the purpose of the prison sentence from being undermined, (iii) to promote the detection and investigation of criminal offences, and (iv) to maintain order and security in prison.

The applicants argue that, in the same way as for the telephone communication of any other inmate in Slovakia, all of their telephone communication is recorded and heard and that they have no effective remedy at their disposal in that regard.

In particular, they contend that recording and eavesdropping is disproportionate because

- it is carried out en bloc, permanently, by force of a statutory rule and without any judicial assessment of the given case,

- there is no room for taking into account aspects such as the nature of the offences of which the inmate is convicted or the presence or absence of any suspicion of illicit activities,

- no account is taken of the rights and freedoms of the other participants in the inmate’s telephone communication,

- there are no rules for how to handle the recordings on the expiry of the twelve-month period for their retention, and

- there is no supervision to ensure the existing rules are respected.

The applications raise issues under Articles 8 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1. In view of the individual circumstances of each of the applicants and the nature of the contested measures (in particular the recording and hearing of telephone communication), can the applicants claim to be victims, within the meaning of Article 34 of the Convention, of a violation of their Article 8 rights on account of the contested legislation (see Roman Zakharov v. Russia [GC], no. 47143/06, §§ 173-78, ECHR 2015) and/or any specific measures taken on its basis ( see, for example, Kvasnica v. Slovakia , no. 72094/01, § 81, 9 June 2009)?

If so, what is the nature and the specific parameters of the interference with their Article 8 rights?

2. Having regard to the (various types of) interference in question, have the applicants exhausted all effective domestic remedies for their Convention complaints under Article 8 of the Convention, as required by Article 35 § 1?

3. Considering the applicants’ specific objections, was the interference with their Article 8 rights justified under its paragraph 2 (see, for example, Segerstedt-Wiberg and Others v. Sweden , no. 62332/00, § 76, ECHR 2006‑VII, with further references)?

4. Did the applicants have at their disposal an effective domestic remedy for (each of) their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?

Appendix

No.

Application no.

Case name

Lodged on

Applicant Year of Birth Place of Residence Nationality

Relation to applicant J. Tatič (born 1974)

Represented by

1.

6796/23

Tatič v. Slovakia

31/01/2023

Ján TATIČ 1974 Leopoldov Slovak

2.

8123/23

Tatičová v. Slovakia

03/02/2023

Veronika TATIČOVÁ 1949 Košice Slovak

Mother

3.

13641/23

Tatič v. Slovakia

20/03/2023

Ján TATIČ 1938 Košice Slovak

Father

Veronika TATIČOVÁ

4.

13848/23

Tatičová and Tatič v. Slovakia

20/03/2023

Ivana TATIČOVÁ 1998 Košice Slovak

Daughter Matúš TATIČ 2003 Košice Slovak

Son

5.

16058/23

Tatičová v. Slovakia

11/03/2023

Ivana TATIČOVÁ 1974 Košice Slovak

Former spouse

Tibor Bacsó

6.

20789/23

Pastorová v. Slovakia

16/05/2023

Andrea

PASTOROVÁ

2001 Veľké Kapušany Slovak

Friend

Tibor Bacsó