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Cite as: [2011] ECHR 941
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
47091/09
by Vladimír PASTYŘÍK
against the
Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 31 May 2011 as a Chamber composed of:
Dean
Spielmann,
President,
Karel
Jungwiert,
Boštjan
M. Zupančič,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Ann
Power,
Angelika
Nußberger,
judges,
and
Claudia Westerdiek, Section
Registrar.
Having regard to the above application lodged on 23 August 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Vladimír Pastyřík, is a Czech national who was born in 1972 and lives in Plzeň. He was represented before the Court by Mr K. Hrádela, a lawyer practising in Prague.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In 2003 the police started to investigate a scheme to influence the outcome of matches of the Czech national football league by means of bribery. The public was interested in this investigation on account of the popularity of the sport in the country, where matches of the national league are followed closely. The press reported on the investigation regularly. As part of the investigation, several telephones were tapped.
On 19 February 2004 a judge at the Brno Municipal Court (městský soud) ordered that the telephone of a certain I.H., who was president of a football club, be tapped from 19 February to 19 May 2004. That club was at that time the last but one in the national league rankings and thus faced demotion to a lower division for the next season. I.M. was suspected of bribing referees to influence the outcome of matches played by his team.
On 27 February 2004, while I.H.’s telephone was tapped, the police intercepted a call with the applicant, a football referee at that time. The conversation included the following exchange:
“I.H.: “We are fucked, really, it couldn’t be worse, dude. We have one last chance to reverse it somehow. We will see, the guys on the field must of course, because we play like shit. I would like to ask you a favour, should it turn out, I do not know, you were here last year, weren’t you?
Applicant: “Yes, I was there, I was there.
I.H.: “1:0 with Zlín in the last minute, dude, I’ll take that. That would be great.”
Applicant: “Sure.”
I.H. “Keep your favour and I will of course arrange some stuff with Jarda, I mean, what it takes to keep the favour, and there will be three dimes in it for you.
Applicant: “Sure, see you on Sunday!”
I.H.: “O.K. bye.
Applicant: “Bye!”
In Czech:
“I.H.: “Úplně v prdeli, fakt uZ to horší nemůZe bejt vole, máme poslední šanci ještě to nějak zvrátit, uvidíme. Musejí samozřejmě kluci na hřišti hlavně, protoZe hrajeme hovno. Chci tě poprosit, kdyby to dopadlo, jako nevím, ty jsi tu byl nějak před rokem asi viď?
Applicant: “No byl jsem tam, byl jsem tam.
I.H.: “Se Zlínem jedna nula v poslední minutě, ty vole, tak to beru, to by bylo super.”
Applicant: “Jasně.”
I.H.: “Zachovej přízeň a já samozřejmě s Jardou domluvím některý věci, jako co je potřeba, ať se zachová přízeň a třicetník je tam pro tebe no”
Applicant: “Jasně, uvidíme se v neděli.”
I.H.: „Dobrý, ahoj!“
Applicant: „Ahoj!“
The match concerned was won by I.H.’s team 2:0.
On 30 July 2004 the police charged the applicant with accepting a bribe.
On 19 September 2005 the Prague 3 District Court (obvodní soud) found the applicant guilty as charged. It found it established that the applicant had accepted payment of 30,000 Czech korunas (CZK) (1,200 euros (EUR)) for being favourable to I.H.’s team and thus influencing the results of the match. The court sentenced him to eight months’ imprisonment suspended for two years. The recording of the telephone conversation, which was played at the hearing, was the main evidence against the applicant. Other testimonies were heard and other evidence, which was mostly suggested by the applicant, adduced. The court did not admit other additional evidence relating to the quality of the telephone signal at the applicant’s home, considering it unnecessary.
The applicant appealed, arguing, inter alia, that the tapping had been illegal and thus could not be used as evidence, that “three dimes” had been meant literally and thus only the equivalent of approximately EUR 0.01 had been at stake, that by “jasně” in the conversation he had not meant “sure” but “clearly” as in “I can’t hear you clearly” and that none of that had constituted a crime.
On 4 January 2006 the Prague Municipal Court upheld the first-instance judgment, finding that the telephone tapping had been legal and endorsing the conclusions of the District Court in other respects.
The applicant appealed on points of law, reiterating his arguments. On 9 August 2006 the Supreme Court (Nejvyšší soud) dismissed his appeal as manifestly ill-founded.
The applicant lodged a constitutional appeal (ústavní stíZnost) in which he complained of violations of his right to a fair trial and right to respect for his private life. He complained, in particular, that the telephone tapping had been illegal and the recording should not have been admitted as evidence, that the courts’ judgments had been insufficiently reasoned that their findings had been wrong, that the act he had committed had not constituted a criminal offence and that the courts had refused to admit evidence suggested by him.
On 2 March 2009 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal as manifestly ill-founded. Regarding his claim as to the illegality of the telephone tapping, it referred to its earlier decision in the case of another accused in the bribery scheme. In that case the court found that the telephone tapping had been legal, because, inter alia, the investigation had been conducted in the context of criminal proceedings in respect of an intentional crime which fell to be prosecuted under an international treaty, namely, the Council of Europe Civil Law Convention on Corruption.
The judge at the Municipal Court who had ordered the tapping, who had not subsequently been in any way involved in the criminal proceedings brought against the applicant, testified as a witness at the trial of another accused in the bribery scheme, where he made a negative statement about the character of the accused.
B. Relevant domestic law
The Code of Criminal Procedure, as in force at the relevant time (Act no. 141/1961).
Article 88 regulated telephone tapping:
(1) In the context of criminal proceedings for a particularly serious intentional crime or any other intentional crime that falls to be prosecuted under an international treaty, the presiding judge, and at the pre-trial stage a judge on a proposal of a prosecutor, may order the interception and recording of telecommunications traffic, if it can be reasonably assumed that it will reveal facts relevant to the criminal proceedings. The interception and recording of telecommunications traffic between the lawyer and the accused is impermissible. If the police, while intercepting and recording telecommunications traffic, discover that the accused is communicating with his lawyer, they must stop the interception immediately, destroy the recording and not use the information learned in this context in any way.
(2) A warrant for the interception and recording of telecommunications traffic shall be issued in writing and shall be reasoned. It must also state the period during which the interception and recording will be carried out, which may not be longer than six months. A judge may extend this period for another six months. The judge shall send a copy of the warrant to a prosecutor without delay. The police shall undertake the interception and recording of telecommunications traffic for all the prosecuting authorities.
...
(4) If a recording of telecommunications traffic is to be used as evidence, it is necessary to accompany it with a report, giving the place, time, manner and contents of the recording, as well as the person making the recording. ... the recording can be used as evidence in a criminal case other than the one for which the telecommunications traffic was intercepted and recorded only if that case also concerns a criminal offence of the nature specified in paragraph 1...
(5) If the interception and recording has not revealed any facts relevant to the criminal proceedings, the recording must be destroyed in the prescribed manner.
COMPLAINTS
The applicant complained of several violations of his rights guaranteed by Articles 6, 7, 8 and 14 of the Convention, which are specified below.
THE LAW
“1. Everyone has the right to respect for his private and family life, his home 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.”
The Court reiterates that telephone conversations are covered by the notions of “private life” and “correspondence” within the meaning of Article 8 of the Convention (see Klass and Others v. Germany, 6 September 1978, § 41, Series A no. 28). The phrase “in accordance with the law” does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1. The law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence (Malone v. the United Kingdom, 2 August 1984, § 67, Series A no. 82). The law must also be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and be compatible with the rule of law (see Kopp v. Switzerland, 25 March 1998, § 55, Reports 1998 II).
Turning to the present case, the Court notes that the telephone tapping was based on Article 88 of the Code of Criminal Procedure, which specifically regulated it (see, a contrario, Kruslin v. France, 24 April 1990, §§ 17 and 34, Series A no. 176 A). It considers that there is no need in the present case to rule in abstracto on the Czech legislation regulating telephone tapping in 2004. It must limit itself to the circumstances of the present case and take into account the nature and extent of the present interference. It notes in this regard that the applicant’s own telephone was not tapped but that only one conversation with I.H. was recorded, the latter himself being a suspect in criminal proceedings. The tapping was ordered by a judge, had a clear aim and was limited in time.
In the light of these circumstances, the Court considers that the interference with the applicant’s private life and correspondence, that is, the interception and recording of one phone conversation, had the legitimate aim of preventing crime and protecting the rights of others in the context of an investigation of a serious crime in respect of which public interest was considerable. It had a clear legal basis and in view of the limited nature of the interference the Court does not consider it disproportionate.
It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court considers it appropriate to examine the applicant’s complaints under Article 6 of the Convention which, insofar as relevant, provides as follows:
“In the determination of ... any criminal charge against him ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal.”
The Court reiterates that it is not a court of fourth instance and it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 I and Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001 II). It also reiterates that it is not its task to review the assessment of evidence by a national court, unless it is arbitrary or manifestly unreasonable (see Camilleri v. Malta (dec.), no. 51760/99, 16 March 2000). Moreover, the admissibility of evidence is governed primarily by the rules of domestic law. The Court’s task under the Convention is only to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see Accardi and Others v. Italy (dec.), no. 30598/02, 20 January 2005 and Heglas v. the Czech Republic, no. 5935/02, § 85, 1 March 2007).
Turning to the present case, the Court considers that all the domestic decisions were logically and sufficiently reasoned and that there is no appearance of arbitrariness or manifest unreasonableness.
Regarding the admissibility of the recording as evidence, the Court notes that the applicant was able to challenge the legality of the evidence at all stages of the domestic proceedings and all the courts considered the complaint ill-founded. In any case, it considers the tapping to have been legal for the reasons given above.
Accordingly, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court notes that the applicant did not use the compensatory remedy under Act no. 82/1998, as amended. Consequently, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies (see Vokurka v. the Czech Republic (dec.), no. 40552/02, 16 October 2007, § 65).
4. Lastly, relying on Article 6 of the Convention, the applicant complained that he had not had access to all the records from the telephone tapping but only to those that had been part of his case file, that there had been prejudicial media publicity that had compromised the fairness of his trial, that the tapping had been ordered by a partial judge and that the remarks of that judge in his witness statement at the trial of another defendant prosecuted in connection with the bribery scheme had compromised his right to be presumed innocent. Moreover, relying on Article 14 of the Convention, he complained that he had been discriminated against in the proceedings.
The Court observes that the applicant failed to raise these issues before the Constitutional Court, which thus did not review these complaints. Accordingly, they must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Declares the application inadmissible.
Claudia Westerdiek Dean Spielmann
Registrar President