Communicated on 7 June 2017
THIRD SECTION
Applications nos 58361/12 and 27176/16
X against Slovakia
lodged on 6 September 2012 and 9 May 2016 respectively
STATEMENT OF FACTS
1. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). The applicant is represented before the Court by Škubla & Partneri s.r.o., a law firm with its registered office in Bratislava.
The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
3. The applicant appears to be a former police officer who at the relevant time was working in cooperation with an influential finance group. He is the owner of a flat in which, at the material time, he did not live but “intermittently spen[t] time”, and which he admits having occasionally let other persons use.
4. On 23 November 2005, at the request of the Slovak Intelligence Service (“the SIS”), the Bratislava Regional Court issued a warrant authorising a surveillance operation code-named “Gorilla”. It was aimed at monitoring the applicant and meetings taking place in the flat. On 18 May 2006 the Regional Court issued another similar warrant authorising the continuation of the operation. In addition to the applicant, this latter warrant was concerned with monitoring another person. The identity of the other person has not yet been officially disclosed, but it is suspected that it is a prominent businessman associated with the above-mentioned finance group who has a separate application pending before the Court about similar matters to those in the present application.
5. On 26 January 2006 the Regional Court issued a further warrant authorising the SIS to monitor the applicant. That warrant is the object of a separate application pending before the Court. Nevertheless, some of the domestic decisions concerning that warrant are also relevant for the subject matter of the present application and are accordingly set out below.
6. The warrants of 23 November 2005 and 18 May 2006 were implemented by the SIS between November 2005 and August 2006. In the course of the operation, the SIS carried out surveillance of the applicant and other persons, which resulted in original and derivative material. The former is understood to be a recording (audio or transcribed) and the latter to be material based on it (summaries and analytical notes). Such material was, or has been, kept in the domain of the SIS.
7. In addition, some further material based on or linked to the operation has been kept in the domain of the Regional Court. It may be presumed that that material consists of the SIS’s applications for the said warrants, an SIS report on the implementation of the first warrant, and an SIS application for early discontinuation of the operation.
8. In December 2011 material was anonymously put on the Internet. It could be defined as a descriptive analytical summary, purportedly produced by the SIS, of what had occurred at the flat. There had purportedly been meetings between the applicant, the businessman referred to above and other persons, including a minister and other public officials, discussing and coordinating massive corruption in the context of the denationalisation of strategic State-owned enterprises, various personal appointments, and bribing of members of parliament. The material mentions the applicant’s name more than a hundred times.
The release of the said material is to be seen in the context of parliamentary elections that were due to take place in Slovakia in early 2012. The affair attracted – and has until the present day retained – extraordinary public attention. A book was published about it and the Minister of the Interior and other persons commented on it at press conferences.
9. In connection with the above-mentioned leaking of information, three lines of inquiry were pursued by the authorities.
First, an investigation was carried out into whether the SIS failed to transmit the outcome of the operation to the prosecuting authorities and whether its agents abused their authority by using that outcome for the purposes of extortion. As a complement to that inquiry, an investigation was carried out into suspected abuse of official powers in connection with the SIS’s applications for the warrants of 23 November 2005 and 18 May 2006 and the issuance of those warrants by the Regional Court. Those investigations have been stayed and no one has been charged.
Secondly, an investigation was conducted into suspected corruption, revealed by the material put on the Internet. This is ongoing and no one is currently facing charges.
Thirdly, an investigation was carried out into suspected slander by the Minister of the Interior in his press-conference statements. The status of this investigation is uncertain, but no charges have been brought to date.
10. The applicant himself has never been charged in connection with the matters referred to above.
2. Initial response
11. The applicant learned about the surveillance operation from an anonymous document left in his mailbox. In order to verify the facts and obtain more information, he turned to various public authorities. Their responses included the following.
12. In a letter of 30 May 2011 the Regional Court confirmed that a warrant had been issued on 23 November 2005 following an application by the SIS. However, no further information could be provided as it was classified. The only body authorised to declassify it was the SIS, which had not done so.
13. In a letter of 17 June 2011, the National Council of the Slovak Republic (“the Parliament”) informed the applicant that, until 17 March 2005, the body responsible for the exercise of parliamentary control over the activities of the SIS under the Privacy Protection Act (Law. no. 166/2003 Coll., as amended) had been the committee on supervision of the use of information technology devices and that, as from 4 August 2006, the body charged with that task was the defence and security committee. A report drawn up by the former body concerning the year 2005 had, however, never been debated by the plenary session of the Parliament and no such report had been produced for the first half of 2006.
3. First constitutional complaint
14. On 6 June 2011 the applicant lodged a complaint with the Constitutional Court. Identifying the Regional Court and the SIS as the defendants, he alleged that a number of his fundamental rights had been violated on account of the issuance of the warrants, their implementation and the creation of material based on the surveillance operation. In addition, he sought orders for the destruction of any such material and payment of 33,000 euros in compensation for non‑pecuniary damage.
15. On 6 March 2012 the Constitutional Court declared the complaint admissible in so far as it concerned the proceedings before the Regional Court in relation to the contested warrants and the issuance of those warrants, and the remainder inadmissible.
16. The merits of the admissible part of the complaint were determined on 20 November 2012, when the Constitutional Court found that the Regional Court had violated the applicant’s right to a fair hearing and to respect for his private life, as well as their constitutional equivalents.
Accordingly, in so far as the warrants concerned the applicant, the Constitutional Court annulled them and made an award in respect of the applicant’s legal costs.
However, it dismissed the applicant’s claim for just satisfaction in respect of non-pecuniary damage, as well as his other claims.
17. The relevant part of the Constitutional Court’s reasoning may be summarised as follows.
Under the subsidiarity principle, the Constitutional Court had no jurisdiction in respect of the SIS because the supervision of SIS operations authorised by the Regional Court was within the jurisdiction of that court. For similar reasons, the Constitutional Court had no power to order the destruction of material produced as a result of the surveillance operation which was in the domain of the SIS. The relevant part of the complaint was thus inadmissible.
The surveillance warrants were unjustified and unlawful as they lacked several fundamental elements. For example, the time-frame within which the SIS was to report to the Regional Court on their implementation was not indicated in a legible manner, and the warrants were not susceptible to review on account of a complete lack of individual reasoning. Moreover, they did not identify the judge who had issued them.
Nevertheless, no interference with the applicant’s “home” could be established because, in the applicant’s own submission, the surveillance device had been installed in a neighbouring flat without any physical entry into the flat belonging to the applicant.
As to the applicant’s claim that, on the basis of the annulment of the warrants, the Constitutional Court should order the destruction of any material linked to the “Gorilla” operation in the Regional Court’s domain, the Constitutional Court observed that the material “was in court files, did not originate from the actions of the Regional Court and was not the product of secret surveillance, or was so at most partly and indirectly”. Furthermore, the Constitutional Court pointed out that the admissible part of the complaint only concerned the warrants and the procedure in respect of them. It concluded that, in such circumstances, the annulment of the warrants could not serve as a basis for ordering the Regional Court to destroy the material in question.
The Constitutional Court also observed that any interference by the SIS with the applicant’s personal integrity could be the subject of an action for protection of personal integrity under the Civil Code. A claim for damages could also be pursued against the State under the State Liability Act. It held that, for similar reasons, the applicant’s claim in respect of non-pecuniary damage was to be dismissed.
4. Subsequent response
18. Relying on the Constitutional Court’s conclusions outlined above, the applicant took various steps aimed at or linked to the destruction of all primary and derivative material resulting from the surveillance operation in the domain of the Regional Court and the SIS. The results of those steps included the following.
19. In a letter of 10 January 2013 the Regional Court informed the applicant that his request for the destruction of any material resulting from the “Gorilla” operation in its domain had to be dismissed. It made reference to the same grounds as those cited by the Constitutional Court for refusing to issue an order to the same effect. A similar request to the SIS was dismissed as unfounded. On 23 March 2016 the applicant reiterated the request to the Regional Court and it is still pending.
20. The Regional Court likewise dismissed a request by the applicant that it exercise its supervisory functions in relation to the SIS’s surveillance operation, for which it had issued the warrants. It held that it had completed its supervisory function when the surveillance operation had been discontinued.
21. In a letter of 6 September 2013 the Office of the Prosecutor General confirmed its previous position to the effect that the Public Prosecution Service had no power to examine whether the SIS had breached the law by allegedly failing to destroy material resulting from the implementation of the warrants of 23 November 2005 and 18 May 2006.
22. In letters of 22 October and 29 November 2013 the Office of the Government informed the applicant that it had no power to deal with his complaint about the SIS’s refusal to destroy the said material. The Office observed that although the director of the SIS was answerable to the Security Council of the Slovak Republic, there was no organ hierarchically superior to the SIS as such. Nevertheless, the applicant’s complaint had been transmitted to a special parliamentary committee for the supervision of SIS activities.
23. In a letter of 13 February 2014 the Secretariat of the Parliament acknowledged receipt of the applicant’s complaint, which had been transferred to it by the Secretariat of the Government. It was noted that the applicant had meanwhile been asserting his rights before the administrative judiciary (see paragraph 25 below). Accordingly, his complaint was considered to have become moot.
24. In a judgment of 31 October 2014 the Regional Court dismissed an administrative-law action (správna žaloba) lodged by the applicant against the SIS’s decisions denying him access to an SIS internal regulation issued under section 17(8) of the SIS Act (Law no. 46/1993 Coll., as amended). Under that legislation, the SIS director was to issue a regulation governing the type of records to be kept by the service, the way in which they were to be kept, and the procedures for gaining access to them. The SIS had acknowledged the existence such regulation but refused access to it on the grounds that it was classified. The applicant appealed against that judgment and his appeal appears to be still pending.
25. On 29 January and 5 February 2014 the Supreme Court declared inadmissible two administrative-law actions by which the applicant had complained of, respectively, an interference with his rights by the SIS and the SIS’s inactivity in connection with the continued existence of material resulting from the implementation of the warrants in question. In both cases, the Supreme Court concluded that although the SIS was a State authority, it was not a body of public administration. Accordingly, its actions and omissions did not fall within the jurisdiction of the administrative courts.
26. In addition to the above-mentioned actions, on 14 April 2014 the applicant lodged an action against the SIS with the Bratislava I District Court. Relying on the State Liability Act and the legal rules concerning protection of personal integrity, he sought an order for the destruction of any material resulting from the implementation of the warrants of 23 November 2005 and 18 May 2006 in the domain of the defendant. The action is still pending.
5. Further constitutional complaints
27. The applicant subsequently lodged a series of constitutional complaints challenging the third warrant (namely that of 26 January 2006 – see paragraph 5 above), the failure of the SIS and the Regional Court to destroy the material resulting from the implementation of the warrants of 23 November 2005 and 18 May 2006 in their respective domains (see paragraph 19 above), the failure of the Regional Court to supervise the implementation of those warrants, in particular after they had been annulled by the Constitutional Court (see paragraph 20 above), and the dismissal of his administrative-law actions (see paragraph 25 above).
28. The Constitutional Court joined those complaints in a single set of proceedings and determined their admissibility by a decision of 6 October 2015. It declared them admissible in so far as they concerned the proceedings before the Regional Court in relation to the warrant of 26 January 2006 and the issuance of that warrant, and inadmissible as to the remainder. The relevant part of the Constitutional Court’s reasoning may be summarised as follows.
In so far as the applicant wished to complain about the implementation of the warrants of 23 November 2005 and 18 May 2006 by the SIS, the Constitutional Court had already rejected such complaint in its decision of 6 March 2012 on the grounds that it had no jurisdiction to deal with it and the applicant had failed to exhaust available ordinary remedies (see paragraphs 15 et seq. above). As there was no new relevant information in that respect, the complaint was inadmissible.
The Constitutional Court noted that, in the applicant’s own submission, the underlying fundamental motive of all his complaints was to achieve the destruction of the material resulting from the implementation of the contested warrants in the domain of the SIS. In that respect, the Constitutional Court acknowledged that when surveillance warrants were annulled, any recordings made as a result of them had to be destroyed.
As to the facts of the applicant’s case, the Constitutional Court noted that, in its observations in reply to the applicant’s constitutional complaints, the SIS had submitted minutes, dated 2 April 2008, of the destruction of the recordings produced by the “Gorilla” operation.
As to the “data extracted from the recordings”, the Constitutional Court noted that the statute did not provide for their destruction. Under section 17(6) of the SIS Act such material had to be deposited by the SIS “in a way that excluded access to it by anyone”. As that material was based on the implementation of warrants that had been annulled by the Constitutional Court, it was inadmissible to use it for any official purpose. Moreover, it could not obtain a lawful status and be used as evidence in any proceedings before public authorities in the future.
Therefore, the relevant part of the applicant’s constitutional complaints had become moot and was accordingly manifestly ill-founded.
29. In a judgment of 2 February 2016 the Constitutional Court determined the admissible part of the applicant’s complaints. On similar grounds to those in its judgment of 20 November 2012, it annulled the warrant of 26 January 2006.
30. In its judgment, the Constitutional Court noted that the Regional Court, as the defendant in the constitutional proceedings, had submitted observations in reply to the complaint. In those observations, it stated, inter alia, that the SIS had applied for the warrant because it considered it necessary to be able to gather information about “matters susceptible seriously to jeopardise or damage the economic interests of the Slovak Republic”. In the same observations, the Regional Court further submitted:
“[The SIS] had not advised the [Regional] court about the specific matters concerned. [The SIS] indeed did not submit to the [Regional] court any records obtained by [the carrying out of the warrant] or minutes of the destruction of any records so obtained.
...
... it is necessary to observe that the Regional Court issued the warrant in a procedure that was common at that time, without proper reasoning, though with reference to the application [by the entity making it] and under the respective provisions of the [Privacy Protection Act]. The procedure mentioned was not governed by any procedural rules at the relevant time.”
31. The Constitutional Court also noted that, according to observations submitted by the SIS, the primary and derivative material resulting from the implementation of the contested warrant had not yet been destroyed. In that connection, it confirmed that, in such circumstances, it was incumbent on the Regional Court, in the exercise of its statutory duty to supervise the implementation of surveillance warrants issued by it, to ensure that the SIS destroy any primary material resulting from it. As to the derivative material, it could not be destroyed but had to be deposited in a manner specified by section 17(6) of the SIS Act.
COMPLAINTS
32. The applicant complains under Article 8 (private life), alone and in conjunction with Article 13 of the Convention, (i) that there was no effective supervision of the implementation of the warrants issued by the Regional Court on 23 November 2005 and 18 May 2006 at the time of their implementation; (ii) that there was no review of the implementation of the warrants after the Constitutional Court annulled them; (iii) that he may not be certain that all of the primary material resulting from the implementation of those warrants was actually destroyed (in particular as the alleged destruction was not judicially supervised and it is not possible to establish what has actually been destroyed); (iv) that such primary material may accordingly still exist in the domain of the SIS; (v) that there continues to exist other material linked to or based on the implementation of those warrants in the domain of the Regional Court and the SIS; (vi) that in so far as that material is kept by the SIS, the applicable rules lack the requisite accessibility and quality; (vii) that the SIS has failed to prevent information concerning the operation carried out under those warrants from being leaked; and (viii) that he has had no effective remedy in that respect.
QUESTIONS TO THE PARTIES
1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular, is the applicant’s action of 14 April 2014 before the Bratislava I District Court an effective remedy within the meaning of this provision in respect of his complaint that his rights have been violated under Article 8 of the Convention on account of the alleged continued existence and the failure to destroy the material produced as a result of the implementation of the warrants of 23 November 2005 and 18 May 2006 in the domain of the SIS?
Did the applicant have effective domestic remedies at his disposal and, if so, has he exhausted them in relation to his complaint that the SIS has failed to prevent information concerning the operation carried out under the impugned warrants from being leaked?
2. In connection with the implementation of the warrants of 23 November 2005 and 18 May 2006, the creation of, and failure to destroy, material resulting from the surveillance operation in the domain of the Regional Court and the SIS, and the alleged failure of the SIS to prevent information about the operation carried out under those warrants from being leaked, has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?
If there was such an interference, was that interference in accordance with the law and necessary in terms of Article 8 § 2, taking into account also, but not only, the applicant’s claims (i) that there was no effective supervision and review of the implementation of the warrants during their implementation and after the warrants were annulled by the Constitutional Court; (ii) that he may not be certain that all of the primary material resulting from the surveillance operation have actually been destroyed; (iii) that, accordingly, such primary material may still exist in the domain of the SIS; (iv) that there continues to exist other material linked to or based on the implementation of the warrants in the domain of the Regional Court and the SIS; and (v) that, in so far as such material is kept by the SIS, the applicable rules lack the requisite accessibility and quality?
3. Did the applicant have at his disposal an effective domestic remedy for his above complaints under Article 8, as required by Article 13 of the Convention?
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