Communicated on 2 October 2019
THIRD SECTION
Application no. 7286/16
Anita POTOCZKÁ and Branislav ADAMČO
against Slovakia
lodged on 31 January 2016
SUBJECT MATTER OF THE CASE
The application concerns the tapping of a telephone belonging to the first applicant and used mainly by the second applicant, which was authorised (for the period running from 27 May 2004 until 27 November 2004) by a judicial order of 27 May 2004 for the purposes of obtaining evidence within the investigation of a criminal offence allegedly committed by the second applicant. Since the order had been classified, the applicants claim that they could see a copy of it, respectively, on 3 September 2013 when the second applicant consulted the relevant part of the file, and on 20 September 2013, when the first applicant visited the second applicant in prison. It was only on that occasion that they learnt that the order was neither duly reasoned nor signed by the judge and did not contain any information as to why it had not been possible to obtain the necessary evidence by other means. Their constitutional complaint challenging those shortcomings was rejected, on the grounds that the first applicant had not been authorised to lodge such complaint since she did not claim that she had actually used the telephone, and that the second applicant had the possibility to complain about the breach of his rights within the criminal proceedings. The applicants claim, however, that the first applicant asserted in the constitutional complaint that she had also used the telephone and that the second applicant could not obtain examination of his arguments related to the deficiencies of the relevant order in the criminal proceedings, first, because the indictment had not relied on the evidence obtained by the phone-tapping since this measure had been considered unlawful and, second, because the criminal proceedings had been discontinued in 2018 on account of their excessive length.
Relying on Articles 6 and 8 of the Convention, the applicants complain that the judicial order authorising the phone-tapping was neither duly reasoned nor based on concrete information (which is why the phone-tapping and the evidence obtained were later considered unlawful), that it did not allow them to identify the issuing judge and that no control of the justification of the phone-tapping was carried out during the whole duration of this measure. They further complain about the arbitrariness of the decision of the Constitutional Court which rejected their constitutional complaint on invalid grounds, having deviated from its case-law, as well as about the lack of an effective remedy in respect of the unlawful phone-tapping.
Relying on Article 6 §§ 1 and 3 of the Convention, the applicants complain that they were not able to make comments on the written observations submitted to the Constitutional Court by the investigator, which the Constitutional Court took into account in its decision.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the proceedings before the Constitutional Court, in accordance with Article 6 § 1 of the Convention? In particular, was the principle of equality of arms respected in these proceedings, as regards the failure to provide the applicants with a copy of the observations filed by the police investigator?
2. In respect of the tapping of the applicants’ telephone communications, was the interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention, in accordance with the law and necessary in terms of Article 8 § 2? In particular, were the reasons adduced to justify such measure “relevant” and “sufficient”?
3. Did the applicants have at their disposal an effective domestic remedy for their complaint under Article 8, as required by Article 13 of the Convention?
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