CASE OF KVASNICA v. SLOVAKIA
(Application no. 72094/01)
9 June 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Kvasnica v. Slovakia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
David Thór Björgvinsson,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 16 April 2009 and 19 May 2009,
Delivers the following judgment, which was adopted on the latter date:
I. THE CIRCUMSTANCES OF THE CASE
A. Factual background
B. Interference with the applicant's telephone communications
C. Investigation of the interference with the applicant's telephone communications
1. Complaints by the applicant and a police director
2. Complaint by chief editor of Sme
3. Complaint by police officer B.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Constitutional Law no. 460/1992 Coll., as applicable at the relevant time) and practice of the Constitutional Court
B. Code of Criminal Procedure (Law no. 141/1961 Coll., as in force at the relevant time)
C. Police Corps Act 1993 (Law no. 171/1993 Coll., as in force at the relevant time)
“Information technology devices
For the purpose of this Act information technology devices are, in particular, electro-technical, radio-technical, photo-technical, optical and other means and devices or their combinations secretly used for
a) search for, opening and examination of consignments and their evaluation while using forensic methods,
b) interception and recording of telecommunications,
c) obtaining image, sound or other recordings.
1. The Police Corps is entitled to use information technology devices when complying with its tasks in the fight against terrorism, money laundering in the context of the most serious forms of criminal activities, in particular organised crime, ... tax evasion and unlawful financial operations, ... The preceding provision does not apply to contacts between an accused person and his or her defence counsel.
2. The Police Corps can use information technology devices also in respect of criminal activities other than those mentioned in sub-section 1 subject to the agreement of the person whose rights and freedoms will thereby be interfered with.
Conditions of use of information technology devices
1. The Police Corps can use information technology devices only where the use of other means would render the investigation of criminal activities mentioned in section 36, identification of their perpetrators or securing evidence necessary for the purpose of criminal proceedings ineffective or considerably difficult.
2. Information technology devices can only be used subject to a prior written consent of a judge and for a period strictly necessary which however cannot exceed six months. That period starts running on the day when such consent has been given.
3. The judge who approved of use of information technology devices can, on the basis of a fresh request, extend the period, but for no longer than six months each time.
4. In exceptional cases, where no delay is possible and a written consent of a judge cannot be obtained, information technology devices can be used without such consent. However, the Police Corps must apply for a written approval by a judge without delay. If such consent is not given within 24 hours from the moment when the use of devices started or if the judge refuses to give his or her consent, the Police Corps must put an end to the use of information technology devices. Information thus obtained cannot be used by the Police Corps and they must be destroyed in the presence of the judge competent to decide on the request.
5. The Police Corps shall submit a request for approval of the use of information technology devices to a judge in writing; it must contain data about the person concerned, specify the device to be used, place, duration and reasons for its use.
6. The judge who gave consent to the use of information technology devices must examine on a continuous basis whether the reasons for their use persist; where such reasons no longer exist, the judge is obliged to immediately order that the use of the devices be stopped.
7. The Police Corps can use information technology devices without prior consent of a judge ... where the person whose rights and freedoms are to be interfered with has consented to such in writing...
1. When using information technology devices the Police Corps must constantly examine whether the reasons for such use persist. Where those reasons are no longer valid, the Police Corps must immediately put an end to the use of an information technology device.
2. The Police Corps must inform the judge who gave consent to the use of information technology devices of the termination of such use.
3. Information obtained by means of information technology devices can be used exclusively for attaining the aim set out in section 36.
4. The use of information technology devices can restrict the inviolability of one's home, the privacy of correspondence and the privacy of information communicated only to the extent that it is indispensable.
5. Information obtained by means of information technology devices can exceptionally be used as evidence, namely where such information constitutes the only proof indicating that a criminal offence listed in section 36 was committed by a specific person and where such proof cannot be obtained by other means. In such case the relevant recording must be accompanied by minutes indicating the place, time, means and contents of the recording and the reason for which it was made.”
D. Privacy Protection Act 2003
E. Decree of the Minister of Justice on the Rules of Procedure before District Courts and Regional Courts (Decree no. 66/1992 Coll.)
F. Other regulations
G. Amendment no. 185/2002 Coll. to the Courts and Judges Act (Law no. 335/1991 Coll.)
I. THE GOVERNMENT'S PRELIMINARY OBJECTION AND THE SCOPE OF THE CASE
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private ... life, ... and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
A. The arguments of the parties
1. The applicant
2. The Government
B. The Court's assessment
1. The general principles
2. Application of the general principles to the present case
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 9 June 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza