The ECHR ruling of July 20, 2021 in the case "Varga v. Slovakia" (complaint No. 58361/12 and 2 other complaints).
In 2012, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was also communicated to Slovakia.
The case appeals against the virtually unlimited powers that the intelligence service has in carrying out a surveillance operation, in the absence of appropriate legal guarantees. The case involved a violation of the requirements of article 8 of the Convention.
THE CIRCUMSTANCES OF THE CASE
The applicant became the object of surveillance during an ongoing operation codenamed "Gorilla" aimed at collecting information about the applicant and meetings that took place in an apartment legally owned by the applicant. The operation was sanctioned by three orders issued by the District Court at the request of the Slovak Intelligence Service (hereinafter referred to as the Service). These rulings were subsequently overturned by the Slovak Constitutional Court. Some of the materials allegedly related to the operation were anonymously posted on the Internet. The applicant took numerous actions at the domestic level (with partial success) in order, among other things, to verify the facts and obtain additional information, to appeal against the execution of the orders and to ensure the destruction of all materials collected during the operation.
LEGAL ISSUES
Regarding compliance with article 8 of the Convention.
(a) Whether there has been interference. The results of the operation carried out on the basis of three judgments were not provided to the European Court, in particular, data on whether the tracking, collection, storage and use of data really concerned the applicant's "private life".
However, it was not disputed in the case that the applicant was the subject of surveillance carried out on the basis of three court orders, and that various materials collected as a result of surveillance and related to the applicant had previously been and continued to be under the jurisdiction of the Service or the District Court. In view of the findings of the District Court and the special nature of the covert surveillance measures, which inevitably made it difficult or impossible for the person concerned to establish any details of the case, the European Court was ready to agree that the execution of these three court orders and the materials collected as a result concerned at least partially the applicant's "private life".
Consequently, the application of the three court rulings and the preservation of the various materials collected on their basis constituted an interference with the applicant's right to respect for private life.
(b) Whether the intervention was justified. The European Court considered whether the interference with the applicant's convention law had been carried out "in accordance with the law".
(i) Enforcement of court orders. In principle, the decisions in question were applied on the basis of the law and, as required by Slovak law, were issued by a judge. There have been no complaints about the accuracy of the wording or the accessibility of these standards.
However, as the Slovak Constitutional Court subsequently found, the rulings were initially made with violations, which made them illegal and unconstitutional. Although the court that issued the rulings was responsible for these violations, it was only as a result of the cancellation of the rulings in question by the Constitutional Court of Slovakia that the District court decided, after examining the applicant's complaints in the framework of the claim for the protection of personal integrity, that the application of court rulings by the Service also violated the applicant's rights.
The decision of the District court did not assess the actions of the Service as such, and the Constitutional Court of Slovakia did not make this assessment either. The observations of the applicant and the court that issued the rulings, submitted in the framework of the proceedings before the Constitutional Court of Slovakia, contained a description of the work of the Service, which itself drafted the rulings authorizing the intervention of the Service in individual human rights and fundamental freedoms, as well as a description of the court that issued the said rulings without checking the facts of the case. In such circumstances, deficiencies in court rulings identified by the Constitutional Court of Slovakia prevented the Service from using technical means of intelligence gathering (hereinafter referred to as technical means) against the applicant on this basis.
As for other means of legal protection against arbitrary interference, Slovak legislation provided for the obligation on the part of the judge who issued the ruling to periodically check whether the grounds specified in the rulings for the use of technical means continued to exist. However, in the present case, there was nothing to indicate that the judges who issued the judgments in question had undertaken any checks in compliance with the above-mentioned rule of law. To the extent that the court materials were known to the European Court, the judges followed a tactic of inaction, which was supported by the District Court in its observations during the proceedings before the Constitutional Court of Slovakia regarding the third court ruling. In particular, the District court noted that, as was customary at the appropriate time, the Service did not submit to the District Court any records on the execution of orders or protocols on the destruction of data received by the Service, and also that at the time in question these issues were not regulated by any special rules.
As for the subsequent review of the procedure for the application of court orders, the passive attitude of the relevant court led to the destruction of court materials on the application of the orders. Other public authorities, such as the Prosecutor's Office or the Administration of the Slovak Government, explicitly denied that they had any jurisdiction to verify the legality of the actions of the Service. Although the applicant's case was referred to a special parliamentary committee, it appears that he could not or did not consider any individual aspects of the case. In this regard, the District Court considered that the control over the Service was mainly political in nature and that, in the case of the applicant's accomplices, the parliamentary committee had no right to decide on any individual claims against the Service in order to protect personal integrity or obtain compensation for illegal actions of the Service staff. To the extent that it was necessary to strengthen parliamentary control by creating a special commission to oversee the use of technical surveillance equipment, there was no indication that such a commission had actually been established and had begun to perform its duties. In addition, the execution of court orders was outside the competence of administrative proceedings and beyond the scope of the relevant normative act on State responsibility.
Indeed, the district court eventually found that the application of the three judgments in question violated the applicant's rights. However, it seems that this conclusion was based solely on the fact that the rulings were overturned, while neither the District Court nor the Constitutional Court of Slovakia considered the merits of the actions of the Service (see, mutatis mutandis, the Ruling of the European Court in the case Akhlyustin v. Russia (See: Judgment of the European Court of Justice in the case Akhlyustin v. the Russian Federation (Akhlyustin v. Russia) dated November 7, 2017., complaint No. 21200/05 // Bulletin of the European Court of Human Rights. 2018. N 7.)). Moreover, the District Court's ruling appeared to be the beginning of some action almost ten years after the applicant had actively, albeit unsuccessfully, sought a way to have his complaints heard. This effort was accompanied by non-working normative references, a circular transfer of jurisdiction from the Constitutional Court of Slovakia to the district Court, as well as useless transfers of the case between other public authorities and from these bodies to administrative courts.
As a result, due to the lack of clarity of the applicable jurisdictional norms, the lack of a procedure for applying existing norms and violations in their application, in executing the three court orders under consideration, the Service practically had discretion equated to unlimited powers, in the absence of a remedy against arbitrary interference, as required by the principle of the rule of law.
(ii) Retention of primary and derivative materials by the Service. After the annulment by the Constitutional Court of Slovakia of the third ruling of the District Court, the retention of information obtained as a result of surveillance, as such, had no basis in Slovak law. Although the Constitutional Court of Slovakia specifically noted that the area of competence of the District Court included ensuring that the Service complies with the relevant provisions of the Law on the Protection of Confidentiality, the District Court regularly refused to recognize that this issue was within its jurisdiction. In this regard, the district Court concluded that the applicant, the court or the bailiff did not have the opportunity to identify the relevant materials with any accuracy, which in practice also meant that this claim could not be filed with the courts of general jurisdiction (see in this regard, mutatis mutandis, the Ruling of the Grand Chamber of the European Court in the case "Center of Justice v. Sweden" (Centrum f r r ttvisa v. Sweden) (See: The Ruling of the Grand Chamber of the European Court of Justice in the case "Center of Justice v. Sweden" (Centrum f r r ttvisa v. Sweden) dated May 25, 2021, complaint No. 35252/08 // Precedents of the European Court of Human Rights. Special issue. 2022. N 1.)). Moreover, with regard to the storage of primary materials obtained on the basis of the third decision of the District Court and derivative materials obtained on the basis of all three decisions, according to the Law on the Slovak Intelligence Service, important aspects of the applicable legal regime were regulated by internal rules issued by the Director of the Service in accordance with the said law. However, it was not possible to assess their actual content, since the rules were classified and were not provided either to the European Court or to the applicant. In addition, there did not seem to be a public authority that had the authority to review the actions of the Service in applying regulations on the use of technical means and, more broadly, to supervise the compliance of the Service with its own internal rules. In other words, the storage of both primary and derivative materials was carried out in accordance with confidential standards that were adopted and applied by the Service in the absence of any elements of external control. These standards obviously did not have accessibility and led to the implementation of covert surveillance measures in the absence of protection from arbitrary interference with the applicant's right to respect for his private life. In view of the above, there was no need to consider whether the other requirements of paragraph 2 of article 8 of the Convention had been complied with, as well as to consider on the merits the rest of the applicant's complaint. RESOLUTION There was a violation of article 8 of the Convention in the case (adopted unanimously). COMPENSATION In the application of article 41 of the Convention. The European Court awarded the applicant 9,750 euros in compensation for non-pecuniary damage.