Information Note on the Court’s case-law 253
Judgment 20.7.2021 [Section I]
Respect for private life
Practically unfettered power exercised by intelligence service implementing surveillance operation, without adequate legal safeguards: violation
Facts – The applicant was subjected to surveillance under an operation code-named “Gorilla”, which aimed at monitoring him and meetings taking place in a flat which he owned. The operation was authorised by three warrants issued by the Regional Court and at the request of the Slovak Intelligence Service (“the SIS”); the warrants were subsequently annulled by the Constitutional Court. Some of the material allegedly linked to the operation was anonymously posted on the internet. The applicant took numerous steps at the domestic level, among other things, to verify the facts and obtain more information, to complain about the implementation of the warrants, and to have all of the material produced by the operation destroyed, with only partial success.
Law – Article 8:
No products of the implementation of the three warrants had been submitted to the Court for assessment, in particular as to whether the monitoring and collection, storing and use of data had actually concerned the applicant’s “private life”.
However, it was undisputed that the applicant had been subjected to surveillance on the basis of the three warrants and that various material originating from the implementation of those warrants and concerning him was or still was retained by the SIS and the Regional Court. In view of the findings of the said domestic courts and the specific nature of measures of covert surveillance, which inherently made it difficult if not impossible for the person concerned to establish the facts in any detail, the Court was prepared to accept that the implementation of the three warrants and the material resulting from it, at least in part, concerned the “private life” of the applicant.
The implementation of the three warrants and the production and retention of the various material resulting from it accordingly had constituted an interference with the applicant’s right to respect for his private life.
(b) Whether the interference was justified
The Court considered whether the interference had been “in accordance with the law”:
(i) Implementation of the warrants
The implementation of the three warrants in principle had had a statutory basis and, as required by the domestic law, the warrants had been issued by a judge. No reproach had been made as to the clarity or accessibility of said rules.
However, as the Constitutional Court had subsequently established, the warrants had been fundamentally flawed such as to render them unlawful and unconstitutional. While those deficiencies had been attributable to the issuing court, it had been essentially on the basis of the quashing of the warrants by the Constitutional Court that the Regional Court had found, ruling on the applicant’s appeal in his action for the protection of personal integrity, that the implementation of the warrants by the SIS had also violated his rights.
The Regional Court’s judgment had involved no assessment of the SIS’ acts as such and no such assessment had been made by the Constitutional Court. The submissions by the applicant and the issuing court before the Constitutional Court proceedings tended to portray the image of an intelligence agency that itself drafted the warrants authorising its interference with individual human rights and fundamental freedoms and that of a court which endorsed those drafts without genuinely checking the facts. In those circumstances, the deficiencies of the three warrants as established by the Constitutional Court had tainted the use of technical means of gathering intelligence (“TMGI”) by the SIS against the applicant on that basis.
As regards any other means of legal protection against arbitrary interference, domestic legislation provided for a duty on the part of the issuing judge systematically to examine whether the grounds on which the use of the TMGI was authorised continued to exist. However, in the present case, there was no indication that the judges who had issued the warrants in question had undertaken any supervisory task on the basis of that provision. In so far as the contents of their files were known to the Court, they rather suggested a pattern of inaction, which was again supported by the submission of the Regional Court in the constitutional proceedings concerning warrant 3. In particular, it had stated that, as was common at that time, the SIS had not submitted to the Regional Court any records on the implementation of that warrant or the minutes of the destruction of any records so obtained; and that, at that time, those matters had not been governed by any specific rules.
As to any subsequent review of the implementation of the impugned warrants, the passive attitude of the issuing court had culminated in the destruction of its files concerning the implementation of the three warrants. Other authorities, such as the Public Prosecution Service and the Office of the Government, had directly denied having any jurisdiction with regard to the lawfulness of actions by the SIS. Although the applicant’s situation had been referred to the Special Parliamentary Committee, it did not appear that the Committee could or did examine any individual aspect of it. In that connection, the Regional Court had found that the control of the SIS had been mainly political and that, in the case of the applicant’s associate, the Committee had had no power to decide on any individual claims against the SIS for the protection of personal integrity or compensation for erroneous official conduct of the SIS. In so far as there should have been any strengthening of parliamentary supervision by the creation of a special commission for the supervision of the use of the TMGI, there was no indication that the commission had actually been created and taken up its duties. In addition, the implementation of the warrants had fallen outside the purview of the administrative-law judiciary and beyond the scope of the relevant legislative act on state liability.
It was true that the Regional Court had ultimately found the implementation of the three warrants to have violated the applicant’s rights. However that appeared to have been based on the mere fact of the warrants having been annulled, without any substantive review of the actions of the SIS being made by the Constitutional Court or the Regional Court (see, mutatis mutandis, Akhlyustin v. Russia). Further, the judgment of the Regional Court appeared to be a turn of events after nearly a decade of the applicant’s having actively, albeit in vain, sought a forum in which to have his claims examined. That effort had been marked by an unworkable legislative reference, circular jurisdictional referrals from the Constitutional Court to the Regional Court, together with futile referrals between other authorities and from them to the administrative courts.
In sum, in view of the lack of clarity of the applicable jurisdictional rules, the lack of procedures for the implementation of the existing rules and flaws in their application, when implementing the three warrants the SIS had practically enjoyed a discretion amounting to unfettered power, not being accompanied by a measure of protection against arbitrary interference as required by the rule of law.
(ii) Retention by the SIS of primary and derivative material
Since the annulment of warrant 3 by the Constitutional Court, the retention by the SIS of the primary material from its implementation had as such been lacking sufficient basis in law. Although the Constitutional Court had specifically found that it had been a matter within the Regional Court’s jurisdiction to ensure compliance by the SIS with the relevant provision of the Privacy Protection Act, the latter had repeatedly denied having jurisdiction to do so. In that connection, the Regional Court had concluded that it had been impossible for the applicant, the court or a judicial enforcement officer to identify the material concerned with any precision, which in practice had also meant that no such claim could be made before the ordinary courts (in that regard see also, mutatis mutandis, Centrum för rättvisa v. Sweden [GC]).
Moreover, as to the storing of both the primary material from the implementation of warrant 3 and the derivative material from the implementation of all three warrants under the SIS Act, important aspects of the applicable legal regime had been governed by an internal regulation of the SIS Director, issued under the Act. Its actual content could not be assessed, however, since the regulation was classified and had been disclosed neither to the Court nor to the applicant. Furthermore, there appeared to be no body vested with authority to review the actions taken by the SIS in implementing warrants for the use of TMGI and, by extension, to supervise its compliance with its own internal regulation. In other words, the storing of both the primary and derivative material had been subject to confidential rules which had been both adopted and applied by the SIS, with no element of external control. Such rules had clearly been lacking in accessibility and had provided the application with no protection against arbitrary interference with his right to respect for his private life.
In the light of the above, it was not necessary to examine whether the other requirements of Article 8 § 2 had been complied with, nor to examine on the merits the remainder of the applicant’s Article 8 complaint.
Conclusion: violation (unanimously).
Article 41: EUR 9,750 in respect of non-pecuniary damage.
(See also Akhlyustin v. Russia, 21200/05, 7 November 2017, Legal Summary; Centrum för rättvisa v. Sweden [GC], 35252/08, 25 May 2021, Legal Summary)