EHRM, 31-07-2012, nr. 36662/04

The applicant was born in 1956 and lives in Vilnius.

At the relevant time, the applicant was a founding member of the Liberal Democrats political party, led by Mr Rolandas Paksas. The applicant was also a member of the Vilnius City Municipal Council.

On 16 March 2003 the State Security Department (‘the SSD’) intercepted a telephone conversation between the applicant and Jurij Borisov (‘J.B.’) (see Borisov v. Lithuania, no. 9958/04, § 15, 14 June 2011), a major contributor to the electoral campaign of the State President, Rolandas Paksas. The tapping of J.B.'s telephone had been authorised by a court. The conversation was as follows:

On 17 September 2003 the SSD applied to the Attorney General's Office with a request for the applicant's telephone to be tapped. The request was based on operational information that the applicant maintained contact with J.B. and A.Z., both of whom had contributed to the electoral campaign of Mr Rolandas Paksas. A.Z. worked for a Russian public relations company. Subsequently, J.B. was convicted of having threatened the State President so that the latter would appoint him as an adviser, grant him Lithuanian citizenship and grant other favours, failing which J.B. threatened to disclose certain information which could damage the President's reputation (see Borisov, cited above, § 30). The monitoring of the applicant's telecommunications also had the goal of establishing the nature of his relationship with a Russian citizen, V.F., who, according to the SSD, had been expelled from Spain in 1982 for spying for the former USSR.

Later that day the Attorney General requested the Vilnius Regional Court to authorise the tapping of the applicant's telephone. The court order was classified as secret, and was not disclosed to the applicant. The Attorney General based his request on the applicant's ‘possible participation in smuggling strategic goods and other crimes’. The court granted the request, authorising the measure for a period of three months. The court order reads:

As came to light later on, the request by the SSD was also based on the applicant's allegedly unlawful involvement in attempts to take over the shares of the road-building company ‘Žemaitijos keliai’.

On 1 November 2003 the SSD declassified the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. It sent the recording to the Attorney General's Office. The following day, the latter began a pre-trial investigation into threats to the State President.

On 2 November 2003 the recording of the telephone conversation of 16 March 2003 between the applicant and J.B. was aired by the State-run and private national television channels LTV and LNK. The SSD denied any involvement in leaking the conversation to the media.

Having intercepted the applicant's telephone conversations between 18 September and 11 November, the SSD obtained recordings of his communications with the State President, the President's advisers and the applicant's business partners. It can be seen from the transcripts of those recordings that the SSD intercepted five conversations between the applicant and the head of State. At least one of these telephone calls was from the State President to the applicant. The transcripts also reveal that the conversations between the applicant and his interlocutors contained some swearing.

On 11 November 2003 the Attorney General wrote to the director of the SSD. The Attorney General noted that on 10 and 11 November the media had made known the fact that the SSD had obtained recordings of telephone conversations between the applicant and the State President. Such recordings, if they existed, were unlawful, given that Article 6 § 3 of the Law on Operational Activities prohibited any operational activities in respect of the head of State (see ‘Relevant domestic law’ below). The SSD was ordered to make sure that the recordings were not made public and were destroyed the same day.

The letter of the Attorney General does not specify whether by that time the content of the applicant's conversations with the State President had already been disclosed to the public.

The letter also read that ‘noting the illegal practice, which began on 30 October 2003, of transfer and making public operational information, the SSD is ordered to adhere strictly to the requirements of the Law on Operational Activities and the Law on State Secrets, as well as those concerning Criminal Procedure’. On this point the Attorney General emphasised that classified information obtained during operational activities, as well as data concerning a person's private life and/or demeaning to his or her honour or dignity should not be disclosed. Furthermore, once the operational investigation had been terminated and where the information concerning the target of the surveillance activities had not proved to be true, such information had to be destroyed. Lastly, the information collected during a pre-trial investigation was to remain confidential, unless a prosecutor decided otherwise.

On 12 November 2003 the applicant lodged a complaint with the Attorney General, alleging that the tapping of his telephone had been unlawful. He also complained that his telephone call with the State President had been intercepted. The applicant alleged a breach of privacy.

On 20 November 2003 the Attorney General requested information from the SSD regarding the leak.

On 11 December 2003 the SSD informed the Attorney General that neither recordings nor transcripts of the applicant's conversation with J.B. of 16 March 2003 had been given to the media. It noted that on 1 November 2003 the transcripts of that recording had been declassified and submitted to the Attorney General's Office for the purpose of a pre-trial investigation.

By a letter of 15 December 2003, the Attorney General requested the SSD to conduct an inquiry into the leak, as a result of which the applicant's and J.B.'s telephone conversation of 16 March 2003 had been aired on television (paragraph 12 above).

On 15 December 2003 the Attorney General's Office informed the applicant that his telephone conversations had been monitored in accordance with the law. The applicant's conversations with the State President had been recorded while the SSD had been tapping the applicant's telephone, and not that of the President. The operational investigation in respect of the applicant had been terminated on 11 November 2003. The applicant was advised to address the SSD in order to obtain the information held on him. To the extent that the applicant complained about the damage he had allegedly sustained by the disclosure of his telephone conversation [of 16 March 2003] to the media, he was advised to bring an action before the civil courts.

On 16 December 2003 the SSD wrote to the Attorney General's Office that the information gathered pointed to the conclusion that the applicant and other persons were attempting to unlawfully acquire the shares of the ‘Žemaitijos keliai’ company. The behaviour of the applicant and his interlocutors could be characterised as extortion of property.

In February 2004 the applicant attempted to challenge the lawfulness of the court order authorising the tapping of his telephone. On 18 February 2004 the Vilnius Regional Court informed the applicant by letter that the law did not provide for an appeal against court orders of that type.

The applicant also wrote to the SSD, requesting it to disclose the results of its inquiry into the leak. He explained that such information was necessary in order to enable him to prepare a civil action for damages. The applicant also requested access to the information on him held by the SSD.

On 9 March 2004 the SSD replied that the information recorded by the SSD had been declassified and transferred to the prosecutors as evidence in two sets of criminal proceedings unrelated to the applicant (namely, the proceedings against J.B. for blackmailing the State President and the proceedings relating to the influence of civil servants in the management decisions of the ‘Žemaitijos keliai’ company). The applicant was advised that he could obtain access to that evidence with a prosecutor's authorisation.

On 10 March 2004 the applicant lodged a complaint with the Court of Appeal, again challenging the court order of 17 September 2003. He argued that there had been no lawful grounds for the tapping, and that his rights under Article 8 of the Convention had been breached. The applicant was also critical of the fact that the SSD had intercepted and made public his telephone conversations with the State President and J.B. He further complained about the absence of a domestic remedy against the court order authorising telephone tapping, alleging a violation of Article 13.

By a letter of 6 April 2004, the President of the Court of Appeal returned to the applicant his complaint without examination. The President stressed that to grant a person the right of access to court orders authorising operational measures and to allow him to challenge such court orders would deprive the secret investigative actions of their meaning. He also noted that Article 8 of the Convention did not prohibit secret investigative measures as such, provided that the interference involved was necessary in the interests of national security or for the prevention of crime. Well-reasoned court orders were to guarantee that the investigating authorities acted within the law.

On 15 March 2004 the SSD informed the Attorney General that in September and October 2003 the applicant and a Russian citizen, V.F., had organised visits by Lithuanian civil servants to the Russian Federation and visits by Russian officials to Lithuania. The applicant had acted in cooperation with the advisers to the Lithuanian President. The applicant also had business dealings with V.F. According to the SSD, the applicant had ceased to organise such visits once the Lithuanian media had made public the SSD report ‘On negative tendencies posing a threat to national security’. The SSD also reiterated that the above facts could be linked to [unlawful] attempts to take over the shares of the ‘Žemaitijos keliai’ company. The SSD asked the Attorney General to verify the information by way of criminal proceedings.

On 15 March 2004 the recordings and transcripts of the applicant's telephone conversations with Russian businessman V.F., J.B. and the State President were deposited with the registry of the Constitutional Court, which was about to hear the State President's impeachment case. The prosecutors did not impose any restrictions on the disclosure of those recordings.

At the hearing of the Constitutional Court on 19 March 2004, some of the recordings were played. Given that the hearing was public and directly broadcast by national television, the conversations were aired.

On 22 March 2004 the applicant requested the opening of a criminal investigation in relation to the disclosure of the contents of his conversations at the Constitutional Court's hearing. He argued that after the disclosure ‘none of his foreign partners would want to do business with [him] or [his] company’.

On 25 March 2004 the prosecutors refused to open criminal proceedings. They noted that the information had been disclosed during a public hearing at the Constitutional Court and in accordance with domestic law. A further complaint by the applicant was dismissed by the Attorney General, who observed that disclosure of the applicant's conversations during the proceedings in the Constitutional Court was a normal part of the judicial process. Furthermore, the disclosed materials contained no information about the applicant's private life. By a final decision of 7 May 2004 the Vilnius City Second District Court upheld the prosecutors' decisions.

On 31 March 2004 the Constitutional Court found that the State President had committed gross violations of the Constitution and a breach of his constitutional oath on account of, inter alia, exploiting his official status to influence decisions by the ‘Žemaitijos keliai’ company concerning the transfer of shares with a view to defending the property interests of certain private individuals close to him. He was also found guilty of having knowingly hinted to J.B. that the law-enforcement institutions were investigating him and tapping his telephone conversations (see Paksas v. Lithuania [GC], no. 34932/04, § 27, 6 January 2011).

The applicant lodged an administrative complaint against the refusal by the SSD to grant him access to the recordings of his telephone conversations.

On 21 May 2004 the Vilnius Regional Administrative Court dismissed the applicant's action as unsubstantiated. The court accepted that pursuant to the domestic legislation a person had a right to obtain information of a private nature held on him by the State institutions (see paragraphs 39 and 40 below). Nonetheless, the information the applicant sought access to had much wider implications; therefore it could not be regarded as concerning his private life. Furthermore, that information had in the meantime been given to the prosecutors as evidence in criminal proceedings (paragraph 24 above). Disclosure of such information was explicitly prohibited by Article 177 of the Code of Criminal Procedure. The court also noted that citizens' rights, as established in [Article 25 § 5 of] the Lithuanian Constitution, could be restricted only when this was provided for by law, necessary in a democratic society and with the aim of protecting rights and freedoms of others. In the applicant's case, such a restriction had been established by law. There was no proof that by refusing the applicant access to the transcripts of his telephone conversations the SSD had acted arbitrarily. It followed that the applicant's right to receive information had not been infringed.

On 12 October 2004 the Supreme Administrative Court dismissed the applicant's appeal, upholding the reasoning of the lower court.

In reply to an inquiry by the applicant's lawyer, on 25 May 2005 the Deputy Attorney General wrote that to that day the SSD had not informed the prosecutors about the results of an internal investigation into the circumstances how the media had got hold of the applicant's telephone conversation with J.B. (paragraphs 12 and 19 above).

By a letter of 15 July 2005, the SSD informed the applicant that, given that there was no ground for an internal investigation into the lawfulness and reasonableness of the tapping of his phone, as sanctioned by the court on 17 September 2003, no inquiry had ever taken place at the level of the SSD.

The Law on Operational Activities (Operatyvinės veiklos įstatymas), adopted by the Lithuanian Parliament and published in the State Gazette (Valstybės žinios) on 28 June 2002, in force at the relevant time, provided:

Article 3. Basic Definitions of the Law

Article 5. Tasks of Operational Activities

Article 6. Safeguarding Persons' Rights when Implementing Operational Activities

Article 9. Principles of Operational Investigation

Article 10. Covert Monitoring of (…) Telecommunications (…)

Article 17. Use of Classified Operational Information and Other Classified Information in Non-operational Activities and Disclosure of Such Information

The Code of Criminal Procedure reads:

Article 177

Article 25 § 5 of the Lithuanian Constitution stipulates that citizens have the right to receive, according to the procedure established by law, any information concerning them which is held by the State institutions.

The Law on the Right to Obtain Information from State and Local Authorities (Teisės gauti informaciją iš valstybės ir savivaldybių įstaigų įstatymas), in force as of 1 June 2000, provided that a person had a right to obtain information of a private nature held on him by the authorities (Article 7 § 1). Nonetheless, the authorities could refuse to reveal information, the disclosure of which could damage the interests of State security, defence, foreign policy, or hinder a criminal investigation. A refusal to disclose information had to be necessary in a democratic society and based on reasons more weighty than a person's right to obtain information. The authorities' refusal to reveal information held on a person could be appealed against to the administrative courts (Article 13).

The applicant complained that the interception and disclosure of his telephone conversations violated Article 8 of the Convention, which reads as follows:

Invoking Articles 6 and 13 of the Convention, the applicant further complained about the absence of a remedy against the interception of his telephone communications.

The Court considers that the complaint falls to be examined under Article 13 of the Convention, which reads as follows:

Article 41 of the Convention provides:

The majority censure the disclosure (or the ‘leak’) to the media of the applicant's conversation of 16 March 2003 with J.B., arguing that the conversation, although declassified by the State Security Department (the SSD), was still confidential, in accordance with Article 177 of the Code of Criminal Procedure. At the same time, the majority acknowledge the Government's argument that the Lithuanian people had the right to be informed about acts committed by the President1.. This line of reasoning is contradictory. Yet the Court's case-law points unequivocally to the prevailing right in cases of this nature. The freedom to inform and the right to be informed prevail over the secrecy of criminal investigations when there is a clear public interest in the disclosure of confidential information.2.

In the particular set of circumstances in this case, the information disclosed about the President and his accomplices was of clear public interest. The following four arguments justify this assertion:

Moreover, the Attorney General's Office considered, after some initial hesitation, that the applicant's conversations, including those with the President, had been tapped in accordance with the law2. and decided not to open a criminal investigation into the ‘leak’ of the information and its disclosure during a public hearing before the Constitutional Court3..

No criminal action was ever taken against the journalists who on 2 November 2003 aired the recorded conversations, although they had had access to and made use of confidential information from pending criminal proceedings. No restrictions were placed on the disclosure of the recorded conversations when the public prosecutors sent the recordings and the corresponding transcripts to the Constitutional Court. By acting in this way, the Attorney General, his office and the prosecutors confirmed ex post facto the lawfulness of the disclosure of the confidential information on account of its clear interest to the Lithuanian people. This decision was not arbitrary. On the contrary, it conformed to the European standard in view of the seriousness of the danger posed to the democratic regime in Lithuania at the material time.

Finally, the disclosure of the recorded conversations cannot reasonably be imputed to the SSD, the prosecutors or the judges involved in the procedure. It would be precipitate to attribute to any of these institutions or persons the responsibility for a ‘leak’ which could have been caused by third persons, such as employees of the provider of telecommunications services or any other persons who might have had access to the information transmitted to the SSD and later on to the Attorney General's Office. It is not irrelevant to add that the recording of the phone conversation of 16 March 2003 was only declassified on 1 November 2003 and made public the next day, having been kept confidential during this period of more than seven months.

In view of the facts of the case, I cannot but conclude that Article 8 was not breached on account of the disclosure to the media of the applicant's conversation of 16 March 2003 with J.B. The same conclusion applies a fortiori to the disclosure of his conversations during the Constitutional Court proceedings.

The majority also find a violation of Article 13 because the law did not provide for a subsequent judicial review. The Law on Operational Activities (‘the LOA’) does provide for such a review but only if there is an ‘appeal’ by the person under surveillance1., which means that the law does not envisage a subsequent automatic judicial review of the tapping of a person's phone, performed by the judge of his or her own motion after the interception has ended. This grave shortcoming was not repaired by the domestic courts in the subsequent proceedings, since the various efforts made by the applicant to contest the judicial order authorising the phone tapping were unsuccessful. Thus, the deficiency of the judicial oversight system lies not only in the practical inefficiency of the means of redress made available to the applicant in this particular case, but in the legal framework itself.

According to the Court's jurisprudence, phone tapping performed by secret services with the purpose of protecting national security must be subjected to tight controls, with regard both to its authorisation and to its implementation2.. In the context of covert measures of surveillance and intelligence gathering, the law must be sufficiently clear in its terms to give citizens an adequate indication of the conditions and procedures according to which the authorities are empowered to resort to this measure, these conditions and procedures including the following:

Turning to the present case, it should be noted that, while in certain respects Lithuanian law complies with the above requirements, in other respects it falls short. The law defines the purposes for which covert interception may be used: preventing or uncovering serious and less serious crimes, monitoring the activities of special services of other States, searching for missing persons, protecting persons from ‘criminal influence’ or protecting the constitutional order, national independence, economic security, national security and State secrets1.. Surveillance may only be allowed pursuant to a written application giving reasons, which may be made solely by the Attorney General or the Assistant Attorney General or the chief or deputy chief prosecutors of the regional prosecutors' offices, on the basis of the data submitted by the heads of the entities responsible for operational activities or their authorised deputies. The application must identify the persons and the objects to be placed under surveillance2.. It must also set out the grounds ‘warranting a request to employ the operational activities’ and ‘the aim of the investigation’1.. Finally, the application must specify the duration of the proposed surveillance2..

The order authorising the surveillance can be issued only under the authority of the presidents of regional courts or the presidents of the criminal divisions of such courts. This judicial authorisation must in principle be given before the surveillance has taken place3.. Exceptions to the procedure outlined above are only possible in urgent cases: the authorisation is then given by one of the prosecutors referred to above. In this case, the prosecutor who has taken the decision must, within twenty-four hours, apply to the competent judge for confirmation of the grounds for the operation. If the judge does not confirm the prosecutor's order, the interception must be terminated and the data gathered immediately destroyed4.. Surveillance may be authorised for a maximum of three months. This time-limit may be extended, but only pursuant to a fresh application and order5..

However, the LOA also reveals several serious shortcomings regarding the stage at which the interception of telephone communications is authorised. The extremely broad remit of the SSD includes ‘solving crimes and establishing the identity of the individuals who … have already committed criminal acts’, this task overlapping with the investigative function of the public prosecutor in the context of criminal procedure6.. Any ‘person preparing, committing or having committed a crime’ falls within the category of persons who may be subjected to interception orders or any other operational investigations, thus enlarging the list of eligible offences to almost every single provision of the Criminal Code and other criminal laws7.. The law does not elaborate on the degree of reasonableness of the suspicion against a person for the purpose of authorising interception or any covert surveillance measure. Nor does it contain the fundamental safeguard that interception should take place only when it is otherwise impossible to achieve the aims pursued.

In the instant case, the competent judge authorised the phone tapping based on several criminal activities ‘described in the request’ and after having had access to the ‘case file (the operative information and other data)’8.. The reasoning set out in the judge's order also refers to the fact that other operative measures had already been exhausted without success. In spite of its regrettable succinctness, the phone-tapping order contained sufficient reasons.

The fact that the SSD intercepted conversations between the applicant and the President and that at least one of the conversations was from the President to the applicant does not prejudice the legality of the phone tapping. Article 6, paragraph 3, of the LOA provides for an exceptional protective regime for the President, which can be considered a functional statutory privilege. This legal prohibition is not breached when the operational activity is ordered in respect of any other citizen and the State President is incidentally involved in the operational activity in question. This conclusion is obvious in the present case if one takes into account the fact that the judge issuing the phone-tapping order was not in a position to guess which persons the applicant would be calling: in other words, when he authorised the tapping of the applicant's phone, the judge did not have the benefit of hindsight in knowing that the applicant would call the President and would be called by him. Hence, the judicial order for the tapping of the applicant's phone was legal and the interception remained legal until the end of the period authorised by the judge.

As to the stage at which the interception of telephone communications takes place, it appears that the judge issuing the order plays a very limited role. In order to examine whether sufficient safeguards exist during this second stage of the interception procedure, when the surveillance is actually carried out or has already ended, one has to take into consideration not only the legal framework, but the judicial practice itself.

The most serious defective feature of the LOA is the lack of an automatic review of the implementation of secret surveillance measures by a body or official that is external to the services deploying the means of surveillance and to the requesting public prosecutors1.. Under Article 21 of the LOA, the requesting public prosecutor is in charge of the review of the lawfulness of the operational activities, having the power to obtain information concerning the conduct and results of the activities. In addition, the services actually deploying special means of surveillance perform an ‘internal review’ of the operational activities. There is no independent review of such matters as whether these services in fact comply with the judicial orders authorising the use of such means, or whether they faithfully reproduce the original data in the records. Similarly, there exists no independent review of whether the original data are in fact destroyed within the legal time-limit if the surveillance has proved fruitless. The judge who issued a surveillance order does not have to be informed when the use of special means of surveillance has ended, nor is there any obligation to inform the issuing judge when the use of special means of surveillance has been discontinued before the end of the authorised period. The LOA makes no provision for acquainting the judge with the results of the surveillance and does not compel him or her to review whether the requirements of the law have been complied with. There are no regulations specifying with an appropriate degree of precision the manner for screening the intelligence obtained through surveillance, the procedures for preserving its integrity and confidentiality and the procedures for its destruction. If the intelligence gathered falls outside the scope of the application for the use of special means of surveillance and does not concern the private life of the persons under surveillance, no solution is provided for, the law only envisaging the destruction of data relating to the private life of the persons under surveillance when the information concerning the target of the operational activities has not proved to be true1..

The persons subjected to secret surveillance are not notified of this fact, since the law does not provide for notification of persons subjected to covert interception under any circumstances or at any point in time. The result of this is that, unless they are subsequently prosecuted on the basis of the material gathered through covert surveillance, or unless there has been a leak of information, the persons concerned cannot learn whether they have ever been monitored. The practical effect of the ‘appeal’ provided for in Article 6, paragraph 9, of the LOA is thus restricted, at least in theory, to these two situations. When the persons under surveillance are not subsequently prosecuted and no leak occurs, they are unable to seek redress for unlawful interferences with their privacy.

The overall supervision of the system of secret surveillance is entrusted to Parliament, which exercises it through a specialised committee. A parliamentary standing committee is responsible for ‘monitoring the protection of constitutional rights and freedoms in the course of operational activities’ and ‘analysing the grounds and expediency of operational activities’2.. However, the manner in which Parliament effects its review is not set out in the law. It appears that the committee does not have the power to review the lawfulness of each and every surveillance measure, including phone tapping, after it has ended and, in the event of its unlawfulness, to declare it null and void.

In the present case, the defective legal system was compounded by the omission of the national authorities, both at the administrative and at the judicial level, to provide the applicant with any legal avenue for impugning the legality of the phone-tapping order, the action taken subsequently to implement it and the resulting intercepted conversations. In spite of the fact that the applicant tried to lodge several ‘appeals’ with the SSD, the public prosecution service and the courts, none of these institutions and persons accepted jurisdiction to deal with those complaints. To sum up, the national authorities left the applicant in a legal black hole, which breached his right to a remedy under Article 13 of the Convention.