Last Updated on January 11, 2024 by LawEuro
European Court of Human Rights (Application no. 42541/18)
The application concerns an alleged violation of the applicant’s right to respect for his private life and correspondence under Article 8 of the Convention resulting from the interception and disclosure of his emails and the dismissal of a criminal complaint lodged in connection with those events in the context of a political party whose leadership hired a private company to monitor one of its members in order to establish where his loyalties lay.
The European Court of Human Rights noted the following:
The Court’s task in the present case is to clarify whether the respondent State fulfilled its positive obligations in protecting the applicant’s right to respect for his private life and correspondence in the particular circumstances of the case. As previously stated, the leadership of the political party hired a private company to monitor the emails received by one of its members, whom they suspected might be involved in negotiations with another political party. Among those emails were some sent by the applicant from his private email account.
The Court notes at the outset that the interception and disclosure of the applicant’s emails amounted to a serious intrusion into his right to respect for his private life and correspondence.
In this regard, the Court attaches great importance to the fact that the intrusion took place in the context of membership of a political party. It stresses in that connection the essential role of political parties in democratic societies. Political parties are a form of association essential to the proper functioning of democracy.
The circumstances of the present case are thus different from those in cases where the intrusion took place in the context of an employer-employee relationship, which is contractual, entails particular rights and obligations on either side, is characterised by legal subordination, and is governed by its own legal rules. The Court acknowledges that internal organisational structures of political parties are distinguishable from those of private companies and that the legal links existing between an employer and an employee and between a political party and one of its members are fundamentally different. The Court accepts that the organisational autonomy of associations, including political parties, constitutes an important aspect of their freedom of association protected by Article 11 of the Convention and that they must be able to wield some power of discipline. Nonetheless, the political loyalty expected of party members or the party’s power of discipline cannot result in an unrestricted opportunity to monitor the party members’ correspondence. On the contrary, the domestic authorities should ensure that the introduction of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse.
The Court observes that the applicant has not argued that the criminal-law provisions in force at the relevant time were lacking in quality. On the contrary, in his view, Article 197 of the Criminal Code was applicable to his case. Furthermore, the Court notes that he was able to intervene in the criminal proceedings and submit his arguments. Nor did he claim that the criminal investigation was not effective. The thrust of the applicant’s complaint is that the Audiencia Provincial’s decision of 21 September 2016 to discontinue the criminal proceedings instituted for unlawful disclosure of secret correspondence was not supported by sufficient reasons and did not take into account his right to respect for his private life and correspondence.
The Court further observes that both the Government and the Constitutional Court stated that the only obligation of the Audiencia Provincial was to give appropriate reasons for terminating the criminal proceedings and that in the present case it had discharged that obligation. In particular, the Constitutional Court stated that the reasons given by the Audiencia Provincial were coherent and respectful of the content of the fundamental right affected: it had assessed the circumstances in which the political party’s monitoring of the email account had taken place and it had rejected, in a reasoned and reasonable way, the intervention of criminal law, without prejudice to any other means of protecting the fundamental rights that might potentially have been affected.
The Audiencia Provincial, for its part, ruled out the existence of an offence, referring to various factors in support of that finding. Firstly, the Audiencia Provincial found that the objective of the monitoring report had been to identify irregularities within the political party. Secondly, it observed that the monitoring had been limited to a search based on specific terms in the email accounts assigned to Mr. P. to carry out his functions within the party. Thirdly, it noted that the rules governing the UPyD email accounts clearly stated that the mailbox could be subject to monitoring and that the information would remain at UPyD’s disposal upon the termination of the user’s relationship with the party. It concluded that there was no evidence of any other purpose by the defendants than detecting irregularities within the political party, nor was there any evidence of their participation in the disclosure of the report. Accordingly, it held that the alleged offence had not been duly proved.
In the Court’s view, neither the reasoning of the Audiencia Provincial, nor the assessment by the Constitutional Court of that reasoning, appears arbitrary or unreasonable. Therefore, the Court does not see any grounds which could justify substituting its own opinion for that of the domestic courts. In this connection, it bears in mind that the role of the Audiencia Provincial, as a criminal court, was limited to determining whether the elements of the alleged offences were met and, in the affirmative, imposing an appropriate criminal sanction. The Court further reiterates that it cannot take the place of the domestic authorities in the assessment of the facts of the case; nor can it decide on the alleged perpetrators’ criminal responsibility.
Moreover, the Court observes that, in accordance with domestic law, the applicant could have brought an action in the civil courts after the discontinuation of the criminal proceedings, since they were not terminated by a final judgment but rather were provisionally discontinued. It further takes note of the available civil remedies indicated by the Government. There is no indication that the applicant brought any civil proceedings, nor has he advanced any arguments to the effect that such remedies were not to be considered effective. The Court therefore considers that the legal framework existing in Spain offered adequate protection of the applicant’s right to respect for his private life and the secrecy of his correspondence.
In view of the foregoing, and taking into account the respondent State’s margin of appreciation, the Court cannot find that the domestic authorities failed to afford adequate protection of the applicant’s right to respect for his private life and correspondence. It follows that there has been no violation of Article 8 of the Convention.
CASE OF TENA ARREGUI v. SPAIN (European Court of Human Rights) 42541/18. Full text of the document.
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