Information Note on the Court’s case-law No. 116
February 2009
Iordachi and Others v. Moldova - 25198/02
Judgment 10.2.2009 [Section IV]
Article 8
Article 8-1
Respect for private life
Status of potential victims; lack of clarity or adequate safeguards in legislation on interception of communications: violation
Respect for correspondence
Status of potential victims; lack of clarity or adequate safeguards in legislation on interception of communications: violation
Facts: The applicants believed that they were at serious risk of having their telecommunications tapped as they were members of a Moldovan non-governmental organisation specialising in the representation of applicants before the Court. Although they did not claim that any of their communications had in fact been intercepted, they considered that the domestic legislation did not contain sufficient guarantees against abuse and pointed to Supreme Court statistics showing that over 98% of all requests by the investigating bodies for permission to monitor communications had been authorised by the domestic courts in the years 2005-2007. The relevant legislation is contained in the Operational Investigators Activities Act 1994 and the Code of Criminal Procedure, both as amended. It permits the authorities, inter alia, to intercept telephone and other conversations with a view to preventing crime and protecting national security.
Law: Article 8 – (a) Interference: An individual could, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures had in fact been applied to him. The relevant conditions were to be determined in each case according to the Convention rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures. The Court could not exclude the possibility that secret surveillance measures had been applied to the applicants as (i) under the Operational Investigative Activities Act the authorities were authorised to intercept communications of categories of persons with whom the applicants, in their capacity as human-rights lawyers, had extensive contact; (b) the NGO of which the applicants were members had acted in a representative capacity in roughly half the Moldovan cases communicated to the Government; and (c) in a move that had been endorsed by the Government, the Prosecutor General had threatened to prosecute any lawyer who damaged the image of the Republic of Moldova by complaining to international human-rights organisations (see Colibaba v. Moldova, 23 October 2007, Information Note no. 101). The mere existence of the legislation thus entailed a menace of surveillance that necessarily struck at freedom of communication and so constituted interference.
(b) “In accordance with the law”: The issue here was whether the domestic legislation satisfied the foreseeability requirement. As regards the initial stage of the telephone-surveillance procedure (the grant of authorisation), despite improvements made by amendments in 2003, the legislation lacked clarity and detail; in particular, it did not define clearly the nature of the offences for which interception might be sought or the categories of persons liable to have their telephones tapped, which, in addition to suspects and defendants, included “any other person involved in a criminal offence”. Further, the law did not prevent the prosecution authorities from seeking a new interception warrant after the expiry of the initial six-month period and the legislation was unclear as to under what circumstances and against whom a warrant could be obtained in non-criminal cases. In respect of the second stage (surveillance proper), the investigating judge’s role was unduly limited as the law made no provision for acquainting him with the results of the surveillance and did not require him to review whether the statutory requirements had been complied with. Indeed, it appeared to place such supervisory duties on the prosecuting authorities. Moreover, the interception procedure and guarantees appeared only to apply in the context of pending criminal proceedings and not to other cases. There were no clear rules on the procedures for screening, preserving and destroying collected data. Lastly, there was no procedure governing the activity of the Parliamentary special commission responsible for exercising overall control of the system or for protecting the secrecy of lawyer-client communications. In the light of the fact that the Moldovan courts had authorised virtually all requests for interception made by the prosecuting authorities in 2007, the Court concluded that the investigating judges did not address themselves to the existence of compelling justification for authorising measures of secret surveillance and that the system was largely overused. In conclusion, the law did not provide adequate protection against abuse of State power and so was not “in accordance with the law”.
Conclusion: violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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