Published on 27 November 2023

FIRST SECTION

Application no. 21662/23 Robert FICO against Slovakia lodged on 25 May 2023 communicated on 6 November 2023

SUBJECT MATTER OF THE CASE

The application concerns the monitoring of the applicant’s private meetings in the context of an investigation into suspected poaching. The applicant is the leader of a political party. At the relevant time, having previously been the Prime Minister of Slovakia, he was a member of the opposition in Parliament.

As the applicant would later learn, on 4 January 2021 the national organised crime investigation agency ( Národná kriminálna agentúra ) began an investigation in respect of one or more unknown persons on suspicion of an aggravated form of poaching under Article 310 § 3 (a) of the Criminal Code (“the CC”). The aggravating factor was indicated as consisting in the use of a weapon, which carried an upper limit of five years’ imprisonment on the applicable penalty scale.

On 18 April 2021 the Nitra District Court issued a warrant, with reference to the above-mentioned proceedings, authorising the use of covert audiovisual recording devices on the exterior of a lodge situated in the hunting area concerned. The decision was based on Article 114 § 1 of the Code of Criminal Procedure (“the CCP”), which provided that such measure could be taken in investigations concerning offences with an upper limit on the applicable penalty scale of three year’s imprisonment.

The applicant was using the lodge at the material time for unrelated purposes.

On 4 July 2021 the District Court issued a new warrant, this time for the use of covert audiovisual recording devices on the interior of the lodge. Under Article 114 § 2 of the CCP, such measure was only permitted in connection with certain types of offences, including the offence of laundering of the proceeds of criminal activity ( legalizácia výnosu z trestnej činnosti ) within the meaning of Article 233 of the CC. The decision referred to the suspicion of that offence in conjunction with the offence of poaching.

It appears that any recordings obtained by the implementation of the warrant of 18 April 2021 were destroyed on the grounds that they had contained nothing of use in respect of the investigation into the offence in question.

On 25 October 2021 the media published audiovisual footage from the inside of the lodge, depicting a series of meetings between the applicant, his political ally, practicing lawyers and other persons, discussing political, legal and private matters.

In response, a review was carried out by the Nitra Regional Office of the Public Prosecution Service resulting in a decision of 16 November 2021 to quash the decision of 4 January 2021. It was found that the charge of poaching, as specified therein, was incongruous, not susceptible to review and lacked support in any previously obtained material. Moreover, for some ten months after the decision of 4 January 2021, the investigator had failed to take crucial pieces of oral evidence and the evidence taken had suggested, rather, that there had in fact been no suspicion at all. At any rate, it had been an inherent error of law to consider the suspected use of a hunting weapon for poaching to be an aggravating factor with regard to the offence of poaching. In the absence of such factor, a charge of ordinary poaching would have been applicable, with an upper limit on the penalty scale of two years’ imprisonment, in which case the use of covert recording devices would not have been permitted under Article 114 of the CCP. In addition, as there had in fact been no suspicion of poaching, there could not have been any suspicion of the laundering of the proceeds of it.

As a further consequence of the above findings, on 12 April 2022 the investigator who had issued the decision of 4 January 2021 was charged with abuse of official authority and the proceedings in that matter are ongoing.

Meanwhile, in December 2021, the applicant had brought proceedings before the Constitutional Court. Relying on, inter alia , his rights to judicial protection and protection of his privacy, he argued that the District Court’s authorisation of the taking of the covert measures that had led to the monitoring of his person had been unlawful and arbitrary and had served a hidden agenda of politically discrediting him.

On 24 November 2022 the Constitutional Court declared the complaint inadmissible. It noted that the District Court’s liability in the case was limited and that the suspicion of abuse of authority on the part of the investigator was being examined in a different set of proceedings. The quashing of the decision of 4 January 2021 had brought the applicant relief with regard to its consequences. The Constitutional Court further considered that the core of the applicant’s complaint had to do with the leak of information to the media and held that, under the subsidiarity principle, any claims in that regard had first to be raised before the ordinary courts.

The applicant has never been charged or suspected in connection with the above-mentioned matters. In another set of proceedings, on 19 April 2021 charges were brought against him and two others in connection with various offences essentially having to do with setting up and running a scheme for the exercise of undue influence within the law-enforcement and tax authorities, including obtaining confidential information about political opponents and other persons with a view to discrediting them. Nevertheless, those charges were withdrawn by the Prosecutor General on account of what were seen as various errors in the factual definition of the reproached actions and procedural irregularities (for more details, see Kaliňák and Fico v. Slovakia [Committee], nos. 40734/22 and 40803/22, 28 February 2023).

The applicant alleges that his rights under Article 6 § 1 and Articles 8, 13 and 18 of the Convention were violated.

QUESTIONS TO THE PARTIES

1. In the proceedings concerning his constitutional complaint, did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of adversarial trial and equality of arms respected in view of his allegation that the Constitutional Court took its decision of 24 November 2022 after having obtained additional information without giving the applicant an opportunity to comment on it?

2. Having regard to the impugned use of covert audiovisual recording devices, has there been a violation of the applicant’s right to respect for his private life, contrary to Article 8 of the Convention?

Was the use of such devices in accordance with the law and necessary under Article 8 § 2?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention, as required by Article 13 of the Convention?

4. If covert audiovisual recording devices were used in the present case, were the restrictions it allegedly imposed on the applicant’s right to respect for his private life under Article 8 of the Convention applied for a purpose other than those envisaged by that provision, contrary to Article 18 of the Convention (see a summary of the applicable principles in Merabishvili v. Georgia [GC], no. 72508/13, §§ 287-317, 28 November 2017)?

The Government are requested to provide copies of the warrants of 18 April and 4 July 2021 and any and all relevant documentation in that connection (including, but not limited to, the applications for such warrants and any documentation concerning the use and possible destruction of the material obtained by the implementation of those warrants). In particular, should the material gathered in the implementation of the warrant of 18 April 2021 have been destroyed, the Government are requested to explain the grounds and circumstances and to support that information by providing relevant documentation.