Access to Public Information, Privacy, Data Protection and Retention, Surveillance
Bartnicki v. Vopper
Closed Expands Expression
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The European Court of Human Rights (ECtHR) considered the lawfulness of a Croatian court’s decision to authorize surveillance on Ante Dragojević’s phone in a case involving allegations of possible drug trafficking between Latin America and Europe via ocean carriers. Dragojević, a sailor, was subjected to secret surveillance for a period of 6 months. The ECtHR found that the surveillance was unlawful under Article 8 of the European Convention on Human Rights (ECHR) because Croatia’s domestic procedures for authorizing surveillance did not provide sufficient safeguards against potential abuse through surveillance.
In 2007, the Croatian State Attorney’s Office for the Suppression of Corruption and Organised Crime (OSCOC) suspected Ante Dragojević of involvement in an international drug-trafficking scheme. At OSCOC’s request, an investigating judge authorized the use of secret surveillance measures to covertly monitor Dragojević‘s telephone. The same investigating judge subsequently authorized extensions on the OSCOC’s surveillance of Dragojević, among other things, each time defaulting to the reasoning of the OSCOC’s surveillance requests but neglecting to include judicial reasoning for the necessity of intrusion into Dragojević’s private life. Such reasoning was required by Croatia’s Code of Criminal Procedure, Article 182(1), which states “[t]he order shall stipulate all relevant information about the individual concerned, the circumstances justifying the need for the measures, the time-limits within which the measures can be carried out – which must be proportionate to the legitimate aim pursued – and the scope and place of the measures.”
In 2009, Dragojević was found guilty of drug trafficking and money laundering and sentenced to nine years’ imprisonment. The Croatian Supreme Court upheld his conviction in 2010, and his constitutional complaint was dismissed in 2011. Dragojević then submitted the current application before the ECtHR.
Article 8 of the ECHR provides a right to respect for one’s “private and family life…home and…correspondence,” subject to certain restrictions that are “in accordance with law” and “necessary in a democratic society.” The expression “in accordance with the law” under Article 8(2) requires first, “that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be compatible with the rule of law and accessible to the person concerned, who must, moreover, be able to foresee its consequences for him, and compatible with the rule of law.”
The ECtHR found Croatia to be in breach of its obligations under Article 8 of the ECHR because tapping Dragojević’s telephone constituted an interference with his rights to respect for his “private life” and “correspondence.”
Under Croatian law, the use of secret surveillance is subject to prior authorization. However, in Dragojević’s case, the orders issued by the investigating judge were based only on a statement referring to the OSCOC’s requests and the assertion that “the investigation could not be conducted by other means,” without any information as to whether less intrusive means were available.
The investigating judge’s approach was endorsed both by Croatia’s Supreme Court and by its Constitutional Court. Nevertheless, in an area as sensitive as the use of secret surveillance, the ECtHR had difficulties accepting such an interpretation of the domestic law, which envisaged and required prior detailed judicial scrutiny of the proportionality of the use of secret surveillance measures to the offense alleged. The ECtHR found that the domestic courts’ circumvention of this requirement by retrospective justification opened the door to arbitrariness and did not provide adequate and sufficient safeguards against potential abuse.
In Dragojević’s case, the Croatian criminal courts had limited their assessment of the use of secret surveillance to the extent relevant to the admissibility of the evidence thus obtained, without going into the substance of the ECHR’s requirements concerning the allegations of arbitrary interference with an person’s Article 8 rights. Moreover, the Croatian government did not provide any information on remedies that could be available to a person in Dragojević’s situation. Therefore, the relevant domestic law, as interpreted and applied by the domestic courts, was not sufficiently clear regarding the scope and manner of exercise of the discretion conferred on Croatia’s public authorities, and it did not secure adequate safeguards against possible abuse. Accordingly, the procedure for ordering and supervising the implementation of the interception of Dragojević’s phone conversations did not comply with the lawfulness requirement, nor was it adequate to keep interference with Dragojević’s right to respect for his private life and correspondence to what was “necessary in a democratic society,” as required by the ECHR.
For the reasons above, the ECtHR unanimously found that Croatia had violated it obligations under Article 8 of the ECHR.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ECtHR’s decision in this case expands freedom of expression by protecting private expression. The decision sends a message to States Parties to the ECHR that domestic law must ensure that there are sufficient procedural safeguards in place to guard against the potentiality of abuse of the power when authorizing secret surveillance.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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