Information Note on the Court’s case-law 197
June 2016
Cevat Özel v. Turkey - 19602/06
Judgment 7.6.2016 [Section II]
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Unjustified lack of ex post facto notification of temporary phone-tapping measure: violation
Facts – In 2004 a warrant to monitor the applicant’s telephone communications was granted by a court for a duration of three months, on the grounds that there were indications of contact between him and suspected members of a criminal association. Upon the expiry of the time-limit, the public prosecutor wrote to the police asking them to discontinue the surveillance, and the recordings made were destroyed. The applicant was not notified of this. In the course of his professional duties as a lawyer, he discovered the prosecutor’s letter by chance while consulting a file at the court registry. He then brought a claim for damages against the individual judges who had authorised the telephone tapping, arguing that it had had no basis in law, but his claim was dismissed.
Law – Article 8: The impugned interference with the applicant’s right to respect for his private life and correspondence had occurred in the context of a judicial investigation conducted in accordance with the law on combating criminal associations and had therefore had a basis in law.
While acknowledging that it might be necessary to keep previous surveillance operations secret for a number of years, the Court had already found that once a surveillance measure had ended, the persons concerned should be notified as soon as was practicable without jeopardising the purpose of the measure or activity carried out by the intelligence services.*
In the present case, although the relevant legislation provided for the destruction of data, it had not contained any reference to notifying the person concerned of the measure. It had not been shown that there were any regulations or practice compensating for this gap in the law. Nor had the Government indicated what reasonable grounds could possibly have explained the failure to notify the applicant of the measure.
This lack of notification had formed a fundamental obstacle to the possibility of lodging an appeal. Unless criminal proceedings were brought against him or her and the data intercepted were used as evidence in those proceedings, the person concerned had little chance – other than in the chance event of a leak – of being able to discover in due course that his or her communications had been intercepted.
Accordingly, the telephone tapping approved by a court in the context of the judicial investigation in respect of the applicant had not been accompanied by adequate and effective safeguards against abuses of the State’s monitoring powers. That factor in itself was sufficient for the Court to conclude that the relevant law had lacked the requisite quality.
Conclusion: violation (six votes to one).
Article 41: EUR 7,500 for non-pecuniary damage.
* Roman Zakharov v. Russia [GC], no. 47143/06, 4 December 2015, Information Note 191.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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