Communicated on 5 October 2017
THIRD SECTION
Applications nos 58359/12, 27787/16 and 67667/16
Y against Slovakia
lodged on 6 September 2012, 9 May 2016 and 11 November 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 applicants, may be summarised as follows.
1. Background
3. The applicant is a prominent businessman associated with an important finance group. It appears that the group had been collaborating with a former police officer (“the collaborator”). He has separate applications pending before the Court about matters similar to those in the present case. Some of the domestic decisions concerning the collaborator’s applications are also relevant for the subject matter of the present case and are accordingly set out below.
4. The collaborator owned a flat in which, at the material time, he did not live but “intermittently spen[t] time”. He claims that he occasionally let other people, including the applicant, use the flat. The applicant himself admits having been to the flat at that time.
5. 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 collaborator 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 collaborator, 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 the applicant.
6. The warrants of 23 November 2005 and 18 May 2006 were implemented by the SIS between November 2005 and August 2006 by way of a listening device. In the course of the operation, the SIS carried out surveillance of the collaborator and other persons, including the applicant.
7. The surveillance operation 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. In addition, some derivative material originating from the operation has been provided to the Prime Minister.
8. Moreover, 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. This further material was or still is being used in various investigations and other official proceedings.
9. 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 collaborator, the applicant 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. In the applicant’s own submission, that material refers to some seventy corruption-related offences and he is depicted in it as the central figure, with his name mentioned more than 800 times.
The authenticity of the material has never been officially confirmed.
10. The release of the 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. Street protests were held and a book was published about it.
11. In the applicant’s submission, with the contribution of various public figures (see in particular paragraphs 29, 30 and 31 below), an overall impression has been created that the material put on the Internet has a truthful basis. That in turn has given rise to a wave of animosity against him and his finance group, coupled with a general call for consequences and sanctions.
12. In connection with the above-mentioned facts, several lines of inquiry were pursued by the authorities.
First, an investigation was carried out into whether the SIS had failed to transmit the outcome of the operation to the prosecuting authorities and whether its agents had 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, the issuance of those warrants by the Regional Court and the implementation of those warrants. Those investigations have been stayed and no one has been charged.
Secondly, an investigation was opened into suspected corruption, revealed by the material put on the Internet. It is ongoing and no one is currently facing charges. More details are set out below.
Thirdly, an investigation was carried out into suspected slander by the Minister of the Interior in his press-conference statements (see paragraph 29 below). The status of this investigation is uncertain, but no charges have been brought to date.
Fourthly, in response to the applicant’s criminal complaint, an investigation was carried out into his allegation that he had received telephone threats. The matter was eventually transferred to the minor‑offences authorities.
13. The applicant himself has never been charged in connection with the matters referred to above.
14. Meanwhile, the collaborator partly succeeded with a complaint to the Constitutional Court in that he obtained a constitutional judgment of 20 November 2012 annulling the warrants of 23 November 2005 and 18 May 2006 in so far as they concerned him on account of their incompatibility with his rights to a fair hearing and to respect for his private life.
The Constitutional Court found the surveillance warrants 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.
However, the Constitutional Court held that it 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.
As to the collaborator’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 collaborator’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 collaborator’s claim in respect of non-pecuniary damage was to be dismissed.
2. The applicant’s actions
15. Following the constitutional judgment obtained by the collaborator, the applicant has pursued several lines of response, as described below.
16. Relying on the Constitutional Court judgment in respect of the collaborator’s complaint, the applicant addressed a number of requests to the SIS, mainly pursuing his claim that any material originating from the operation should be completely destroyed. His subsequent complaint that the SIS had turned those requests down was handled successively by the Office of the Government and the Secretariat of the Parliament (“the parliament secretariat”).
In particular, in a letter of 29 November 2013 the Office of the Government informed the applicant that it had no authority to deal with his complaint. Although it was true that 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.
In a letter of 13 February 2014 the parliament secretariat, for its part, acknowledged receipt of the applicant’s complaint, which the Office of the Government had transferred to it. It went on to say that as the applicant had meanwhile been asserting his rights before the administrative judiciary (see below), his complaint was considered to have become moot.
Unsatisfied with the outcome, the applicant further pursued his claims before the Constitutional Court by way of a complaint lodged on 26 August 2013.
17. In addition to the requests mentioned above, the applicant also requested 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 of such a regulation but refused access to it on the grounds that it was classified. The applicant challenged that response by lodging an administrative‑law action. On 31 October 2014 the Regional Court dismissed his action. The appeal proceedings are still ongoing.
18. The applicant also sought access to some information in relation to the investigations mentioned above. As his claims before the Ministry of the Interior and two levels of administrative judiciary were unsuccessful, on 17 July 2015 he lodged a complaint with the Constitutional Court. The proceedings appear to be ongoing.
19. Moreover, the applicant requested that the Prosecutor General step in with a view to reviewing the lawfulness of the treatment of the material derived from the SIS’s surveillance operation. In response, 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 authority 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.
20. Furthermore, the applicant lodged two administrative-law actions complaining that the SIS had interfered with his rights by, respectively, its actions and its failure to act in connection with the continued existence of material resulting from the implementation of the warrants in question. On 29 October 2013 and 29 January 2014 the Supreme Court declared those actions inadmissible on the grounds 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. The applicant challenged those decisions before the Constitutional Court by lodging complaints on 23 December 2013 and 17 April 2014.
21. In addition, the applicant made several applications to the Regional Court and the Ministry of Justice seeking to press the Regional Court to exercise what he considered to be a part of its supervisory duty in relation to the implementation of the warrants in question. In particular, he considered that it was up to the Regional Court to follow up the Constitutional Court’s judgment in respect of the collaborator’s complaint by ensuring that the SIS destroys any material based on the operation. As he was not satisfied with the outcome of those applications, the applicant continued pursuing his rights by way of a separate constitutional complaint lodged on 28 April 2015.
Following the Constitutional Court’s decision in respect of that complaint (see below), on 23 March 2016 the applicant again applied to the Regional Court. His application appears to be still ongoing.
22. 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 ongoing.
3. Constitutional Court’s decision
23. The applicant’s constitutional complaints of 26 August 2013, 23 December 2013, 17 April 2014 and 28 April 2015 (see paragraphs 16, 20 and 21 above) were joined into a single set of proceedings together with similar complaints pursued by the collaborator. The admissibility of the complaints was determined in a decision of 6 October 2015. It was served on the applicant on 12 November 2015 and was not amenable to appeal.
24. As for the applicant’s complaints in relation to the SIS, the Constitutional Court noted that similar complaints had already been examined and declared inadmissible in a decision of 14 March 2012. Their examination was accordingly precluded by the principle of res judicata.
However, on the basis that essentially the same complaints had been advanced by the collaborator, the Constitutional Court referred to the conclusions reached in its decision on the admissibility of the collaborator’s previous constitutional complaint (see above) to the effect that it had no jurisdiction in relation to supervision of the implementation of warrants by the SIS and that the collaborator had failed to exhaust available ordinary remedies in that respect. As there was no new relevant information in that respect, the applicant’s complaint was inadmissible.
As for the remaining complaints, the Constitutional Court noted that, in the applicant’s own submission, his underlying fundamental motive 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 remainder of the applicant’s constitutional complaints had become moot and was accordingly manifestly ill-founded.
25. In addition, as regards the applicant’s specific claim that the SIS had not informed him about the destruction of any material produced by the operation, the Constitutional Court noted that the existing statute did not provide for any such duty. However, as unlawful surveillance measures were a serious interference with privacy, the court held that it was for the legislature to adopt precise rules enabling individuals to find out about judicial decisions concerning the use and termination of use of such measures concerning them.
4. Further constitutional judgment in respect of the collaborator’s complaints
26. On 2 February 2016 the Constitutional Court decided on the merits of the admissible part of the collaborator’s complaints. It concerned a further warrant authorising the SIS to monitor him, which had been issued by the Regional Court on 26 January 2006. The Constitutional Court’s judgment is structured and based on essentially the same reasoning as the judgment of 20 November 2012.
27. In addition, 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 impugned 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.”
5. The “Gorilla investigation”
28. This investigation concerns suspicions of corruption raised by the material put on the Internet. It was opened on 9 January 2012 against one or more unidentified individuals and is ongoing. In the course of the investigation, depositions have been taken from numerous witnesses and information has been sought from a great number of persons and institutions within and outside Slovakia. Although no charges have been brought against him, the applicant considers that he is one of the key suspects in this investigation and that it concentrates on him and on the companies within the group associated with him. He has been questioned twelve times.
29. The Minister of the Interior has informed the public about the investigation in press conferences, through the media and by other means. In the press conferences held on 9 January and 5 March 2012 he stated, inter alia, that what was at issue was a serious crime committed by an organised group, which included some finance groups. Furthermore, in the applicant’s submission, the minister stated that a criminal offence had been committed, referring to the person responsible for it in terms that clearly enabled the applicant’s identification.
In addition, the minister reported on the progress of the investigation in parliament on 12 September 2012 and 7 February 2013.
30. The head of the investigative team has repeatedly informed the public through the media on the progress of the investigation. He said that to a significant extent the information on the Internet was proving to be accurate and, in the applicant’s view, he clearly identified the applicant as the key suspect.
In a letter of 3 February 2015 the body supervising the investigation, the Office of Special Prosecutions (Úrad Špeciálnej prokuratúry – “the OSP”), reprimanded the head of the investigative team for lack of professionalism in his media communication, in particular in interviews for a daily newspaper on 2 and 3 February 2015, and reserved the exclusive right to inform the public on such matters.
31. On 15 June 2015 the parliament convened for an extraordinary session to hear a report which it had invited the supervising prosecutor to deliver on the progress of the investigation. The latter declined to provide such a report on the grounds that, in his view, parliament had no power to enquire into ongoing investigations. Nevertheless, the affair was debated with the applicant being identified and, in his submission, being referred to as a suspect.
32. On 1 October 2015 the applicant lodged a complaint with the Constitutional Court, alleging, inter alia, that his right to a hearing within a reasonable time had been violated as the investigation had been too lengthy. He submitted that although no formal charges had been brought against him, the investigation had had such an impact on him that he had in substance been charged with a criminal offence.
33. On 17 February 2016 the Constitutional Court declared the complaint inadmissible. It noted that the applicant had neither been charged, nor was he otherwise directly concerned by the investigation, other than having been questioned as a witness. Accordingly, he had not been charged with a criminal offence and he could not rely on the right to a hearing within a reasonable time.
The decision was served on the applicant on 23 May 2016 and was not amenable to appeal.
COMPLAINTS
34. Arguing that he has in substance been charged with a criminal offence, the applicant complains under Article 6 § 1 of the Convention that the “Gorilla investigation” has been too lengthy.
35. The applicant also complains under Article 6 § 2 of the Convention that that by their public statements, the prosecuting authorities and the Minister of the Interior have breached his right to be presumed innocent.
36. Moreover, 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 had annulled them; (iii) that in so far as he was affected by the implementation of those warrants without being specifically targeted by them, there is no framework for the protection of his rights as a “person randomly affected by surveillance measures”; (iv) that he cannot 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); (v) that such primary material may accordingly still exist in the domain of the SIS; (vi) 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; (vii) that in so far as that material is kept by the SIS, the applicable rules lack the requisite accessibility and quality; (viii) that the SIS has failed to prevent information concerning the operation carried out under those warrants from being leaked; and (ix) that he has had no effective remedy in that respect.
QUESTIONS TO THE PARTIES
1. From the applicant’s perspective, is Article 6 of the Convention applicable to the “Gorilla investigation” in the present case? In particular, does it involve the determination of a criminal charge against him? Has he been charged with a criminal offence in substance and, if so, as from when?
2. Assuming that the guarantees of Article 6 § 1 of the Convention apply to the “Gorilla investigation” from the applicant’s perspective, has the length of the investigation been in breach of the “reasonable time” requirement within the meaning of that provision?
3. Assuming that the guarantees of Article 6 § 1 of the Convention apply to the “Gorilla investigation” from the applicant’s perspective, in connection with his complaint about the statements made publically by the Minister of the Interior and the prosecuting authorities about that investigation, was his right to be presumed innocent, guaranteed by Article 6 § 2 of the Convention, respected in the present case?
4. Has the applicant exhausted 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 in the domain of the SIS 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?
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?
5. 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 had been annulled by the Constitutional Court; (ii) that in so far as he was affected by the implementation of those warrants without being specifically targeted by them, there was no framework for the protection of his rights as a “person randomly affected by surveillance measures”; (iii) that he cannot be certain that all of the primary material resulting from the surveillance operation has actually been destroyed; (iv) that, accordingly, such primary material may still exist in the domain of the SIS; (v) 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 (vi) that, in so far as such material is kept by the SIS, the applicable rules lack the requisite accessibility and quality?
6. 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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