Access to Public Information, Privacy, Data Protection and Retention, Surveillance
Bartnicki v. Vopper
In Progress Expands Expression
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The Primary Court I in Skopje, the Republic of Macedonia convicted the former Prime Minister to two years imprisonment for abuse of official position and authority as the result of unlawful influence in obtaining a luxury vehicle. The manner in which the former Prime Minister had obtained the vehicle had been exposed through a series of unlawfully intercepted communications and the prosecution sought to use these recordings as evidence. The former Prime Minister objected to the use of illegally obtained evidence, but the Court held that the public interest in determining the responsibility for the commission of serious crimes outweighed the former Prime Minister’s right to privacy.
Between February and October 2012, the then-Prime Minister of the Republic of Macedonia, Nikola Gruevski, requested that the then-Minister of the Interior, Gordana Jankulovska, initiate a public procurement process for an armoured Mercedes model C 600 Gard, but stipulated that the procurement must favour a specific company, Mak Auto Star Dooel in Skopje. Jankulovska instructed her assistant, Gjoko Popovski, to issue the public bid tailored in such a way that Mak Autostar Dooel Skopje would be prioritized but also so that the Ministry of the Interior would purchase the vehicle. Once the Ministry of the Interior was in possession of the vehicle, the Ministry would then give it to the Prime Minister so that it was not publicly known that the Prime Minister had obtained such a luxurious vehicle. On April 3, 2012, the bid was issued and Mak Autostar Dooel Skopje was the only company to participate in the process. On June 11, 2012, the company was awarded the contract for the vehicle in the amount of 35 226 000MKD (approximately €576 476).
In early 2015, the main political opposition party in Macedonia, the SDSM, released a series of illegally intercepted conversations of discussions between senior state officials which the SDSM believed provided evidence of criminal offences. These recordings then led to the discovery of mass illegal interception of communications of thousands of individuals, including government ministers, other government employees, judges and journalists. Amongst these recordings were eight audio recordings that related to Gruevski’s arrangement to procure the Mercedes.
As a result of the political crisis created by the release of the wiretapped conversations, the four largest political parties in Macedonia, under the guidance of the European Union, met and drew up the Przhino Agreement. The Przhino Agreement called for the establishment of a Special Public Prosecutor’s Office (SPO) which was created as a separate prosecution office within the judicial system and was to be responsible for investigating and prosecuting criminal offences related to and arising from the content of illegally intercepted communications between 2008 and 2015. The SPO was established by legislation enacted on September 15, 2015 and would have a mandate of five years (with the possibility of an extension). In addition, laws on the Protection of Privacy and on the Protection of Whistle-blowers were adopted on November 9, 2015.
One of the cases the SPO investigated was that of Gruevski illegally procuring the luxury Mercedes. Gruevski and Popovski were charged for their involvement in, and abuse of power during, the manipulation of the procurement process.
Gruevski brought an application under the Law for Criminal Procedure for an amendment to the indictment under which he was charged. The Law on Criminal Procedure allows the accused person to challenge the legality of how evidence was obtained at any stage during the trial process (including the investigative phase, in objecting to the indictment, as well as the entirety of the trial). Gruevski argued that the eight audio recordings the SPO sought to rely on as evidence had been obtained in violation of his right to privacy and were therefore unlawful and inadmissible as evidence. He requested that the recordings be removed from the court file. Although the legislation establishing the SPO did not specify whether the illegally intercepted communications should be considered as evidence these materials had been used as evidence in all of the SPO proceedings. The Trial Court accepted Gruevski’s application, removing the audio recordings from the court file. The SPO then appealed the decision.
In the appeal, the SPO argued that although the communications were illegally intercepted, they were then legally obtained by the SPO under article 247 of the Law on Criminal Procedure. This provision places a duty on every person to provide any requested information to the public prosecutor, and the SPO argued that the provision applied when the SDSM handed over an external hard disk containing the intercepted communications. In addition, the SPO argued that in this case the public interest should outweigh the right of privacy of the persons whose conversations had been recorded.
Gruevski argued that the communications had been illegally intercepted and that any evidence obtained by the SPO was therefore illegally obtained and in violation of the right to privacy of those individuals implicated. Gruevski relied on article 12 line 2 of the Law on Criminal Procedure which states that any evidence collected in an unlawful manner or in violation of the rights and freedoms established in the Constitution, the laws and international agreements, as well as any evidence resulting thereof, may not be used and may not provide the ground for a judicial verdict. In addition, Gruevski argued that the SPO had not presented an expert opinion on the authenticity, integrity and truthfulness of these communications, nor provided details on how they were handed over to the SPO by the SDSM. Gruevski also argued that he had not been given a copy of the original communications to enable him to prepare his defence.
Gruevski relied on the newly adopted Law on the Protection of Privacy and specifically article 1, paragraph 3 which prohibits the use of any illegally intercepted communication for any purposes which includes electoral campaigns and criminal proceedings. However, article 2 of this Law required that any person who is in possession of illegally intercepted communication must, within 20 days of the entering into force of the Law on the Protection of Privacy, hand that material to a public prosecutor. The SDSM had not handed over the material within the stipulated time, only providing the SPO with the information one month after the expiration of the prescribed period. Gruevski referred to an opinion, number 829/2016, issued by the Venice Commission within the Council of Europe on March 15, 2016 on the Macedonian Law on the Protection of Privacy. The opinion noted that “Article 2 of this Law does not fix any sanction for the failure to hand over the materials to SPO within the deadline of this article, but the continual possession of copies of the conversations after this deadline is declared unlawful pursuant to article 1 paragraph 3 of this Law.” Gruevski submitted that this meant that because the SDSM had handed over the material to the SPO after the stipulated deadline it had been in possession of the illegally intercepted material unlawfully. He argued that therefore the SPO had not received the information from the SDSM in accordance with the Law on the Protection of Privacy and so the Law on Criminal Procedure could not be used by the SPO to justify their use of the illegally intercepted communications.
The Appeal Court in Skopje overturned the Trial Court’s decision and accepted the initial indictment with all eight impugned audio recordings. The case was then sent back to the Trial Court for a determination on the merits.
On February 16, 2018, the matter proceeded before the Trial Court consisting of two judges and three lay judges. The Court relied on the Appeal Court’s judgment which had emphasized that the rights of an individual cannot outweigh the public interest when it is necessary to protect that public interest.
The Court noted the public interest in determining the truth and the responsibility for the commission of serious crimes, and held that the audio recordings should be used in the present case. It rejected Gruevski’s submissions that the use of the recordings would infringe his rights under the Constitution and article 8 of the European Convention on Human Rights as unfounded, and found that, in contrast, affirming the public interest in the recordings would reinforce the democratic spirit and therefore guarantee the rule of law which is a fundamental value of the constitutional order of the Republic of Macedonia.
The Court acknowledged that the evidence had been unlawfully collected, but held that the handover of the evidence to the SPO was in line with article 287 of the Law on Criminal Procedure and the legislation establishing the SPO. The Court also held that nothing in the Law on Privacy prevented the SPO from using the audio recordings as evidence in the case.
The Court found Gruevski guilty of receiving a reward for unlawful influence under article 359, line 2 of the Criminal Code and sentenced him to two years’ imprisonment. The Court also found Popovski guilty of an abuse of official position and authority under article 353 (5)(1) of the Criminal Code and sentenced him to six and a half years imprisonment (although on appeal this sentence was reduced to four and a half years’ imprisonment).
Note: Gruevski has approached the Supreme Court of Macedonia seeking an extrajudicial remedy on the grounds that criminal procedure and the Criminal Code had been violated by the Trial Court. This matter is still pending but the Supreme Court can either reverse the decision of the Trial Court, completely or partially nullify the decision of the Trial Court and/or the Higher Court, return the case to the Trial Court for retrial or limit itself to establishing whether there had been any violations of the law.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In finding in favour of the public interest over individuals’ right to privacy this judgment emphasizes the important of the right of the public to receive information of public importance. By allowing the illegally interception communications as evidence in the criminal trial the Court ensured the public was informed about the criminal charges laid against senior government officials.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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