Monitoring of telephone and internet use
RELEVANT LEGAL FRAMEWORK AND PRACTICE 46. The Constitution reads: Article 22 “Private life shall be inviolable. Personal correspondence, telephone conversations, telegraph messages, and other communications shall be inviolable. Information concerning the private life of a person may be collected only upon a justified court decision and only according to the law. The law and the courts shall protect everyone from arbitrary or unlawful interference with his or her private and family life, as well as from encroachment upon his or her honour and dignity.” Article 25 “... Citizens shall have the right to receive, according to the procedure established by law, any information held about them by State institutions.” Article 33 “Citizens shall have the right to ... enter on equal terms the State Service of the Republic of Lithuania ...” 47. The Law on Criminal Intelligence ( Kriminalinės žvalgybos įstatymas ), in force as of 1 January 2013, read as follows at the material time: Article 5. Protection of human rights and freedoms when conducting criminal intelligence “1. Human rights and freedoms must not be violated during the conduct of criminal intelligence measures. Individual limitations on human rights and freedoms must be temporary and apply only in the manner prescribed by law in order to protect the rights and freedoms, as well as property, of other persons, and public and national security. ... 6. At the request of a person who has been subjected to criminal intelligence measures, but where the information received has not been confirmed and no pre-trial investigation has been opened, but [as a result of criminal intelligence measures], the person has experienced negative legal consequences, the information collected about him or her when conducting criminal intelligence, except the information specified in Article 19 § 7 of this Law, must be provided. ... 9. A person who considers that the actions of criminal intelligence entities have violated his or her rights and freedoms may lodge an appeal against their actions with the head of the principal criminal intelligence institution or the prosecutor ..., [and] may lodge an appeal against decisions of the latter to the president of the regional court or a judge authorised by him or her ...” Article 8. The grounds for a criminal intelligence investigation “1. A criminal intelligence investigation shall be performed when: 1) there is information about a very serious or serious crime that is being prepared, is being committed, or has been committed, or about crimes of medium severity referred to in Article ... 228 § 1 ... of the Criminal Code [abuse of office], or about those who are preparing, are committing, or have committed such acts, ... 3. If, during the conduct or completion of a criminal intelligence investigation, the characteristics of a criminal act are detected, a pre-trial investigation shall be initiated immediately ...” Article 19. The Use of Criminal Intelligence Information “1. Criminal intelligence information may be used in the following cases: 1) to carry out criminal intelligence tasks; ... 3) in providing information about a person in accordance with the procedure established in the Republic of Lithuania’s Law on the Prevention of Corruption. ... 3. Criminal intelligence information about an act with the characteristics of a corruption criminal act may, with the consent of the prosecutor, be declassified by decision of the head of the principal criminal intelligence institution and be used in an investigation into a disciplinary offence and/or misconduct in office. ... 7. The following information shall not be provided: detailed information about the methods and means of collecting criminal intelligence information, tactics concerning the application of the methods by which criminal intelligence information is collected and the identity of secret participants in criminal intelligence, and detailed information on the quantitative and personal composition of these participants.” 48. The Law on State Service ( Valstybės tarnybos įstatymas ) read as follows at the relevant time: Article 2. Definitions “13. “Abuse of office” ( Piktnaudžiavimas tarnyba ) means an act (act or omission) by a civil servant where his or her official position is used not in the interests of the service or in accordance with laws or other legal acts, or is used for self-interest (misappropriation of another’s property, funds, and so on, or unlawful transfer thereof to other persons) or for other personal reasons (revenge, envy, self-advancement, unlawful provision of services and so on), also any actions of the civil servant exceeding the powers conferred on him or her, or any wilful acts.” Article 29. Disciplinary penalties “4. Dismissal from office may be imposed as a disciplinary penalty for a gross disciplinary offence and for any other disciplinary offence where the civil servant has received a strict reprimand at least once over the past twelve months. 5. Serious misconduct in office shall mean misconduct which results in a serious breach of the laws or other regulatory provisions governing the civil service and the activities of civil servants, or which adversely affects the duties of a civil servant or the principles of ethics for civil servants’ conduct. 6. The following shall be considered as serious official misconduct: 1) the conduct of a civil servant, as related to the performance of official duties, which discredits the civil service, degrades human dignity or other actions which directly violate the constitutional rights of people; ... 3) criminal acts of a corrupt nature, as defined in the Law on Prevention of Corruption, related to the performance of the official’s duties, even if the act did not incur criminal or administrative liability for the civil servant concerned; 4) abuse of office and non-compliance with the requirements of the Law on the Coordination of Public and Private Interests in the Civil Service.” 49. The Law on Prevention of Corruption ( Korupcijos prevencijos įstatymas ) read as follows at the material time: Article 2. Main definitions “2. “Corruption offences” ( Korupcinio pobūdžio nusikalstamos veikos ) means the acceptance of a bribe, influence peddling, other criminal acts committed in the public administration sector or when providing public services with a view to seeking personal gain or gain for other persons: abuse of office or misuse of powers, abuse of authority, forgery of documents and measuring devices, fraud, appropriation or embezzlement, disclosure of an official secret or a commercial secret, incorrect income, profit or assets statements, money or asset laundering, interfering with the activities of a civil servant or a person carrying out public administration functions, and other criminal acts aimed at seeking or soliciting a bribe or subornation, or concealing or disguising the acceptance or giving of a bribe or subornation.” 50. By a ruling of 18 April 2019, on the compliance of the provisions of the Law on Criminal Intelligence, the Law on State Service and of the Statute of Internal Service with the Constitution, the Constitutional Court held: “86.3.1. It has ... been mentioned that, under the Constitution, ... a court (judge), when administering justice and settling a dispute concerning the imposition of an official penalty, must, on a case-by-case basis, fully assess all the material, data, or information used in investigating the misconduct in office, and must decide whether, inter alia, information about a person that has been collected secretly in the manner established by law, declassified in accordance with the procedure laid down in legal acts, and transmitted for use for the purposes of the investigation of the misconduct in office by the person in question, can be considered evidence in a concrete case, whether such information complies with requirements for the lawfulness and credibility of evidence, and whether such use is necessary in a democratic society when the State seeks to attain certain legitimate aims, such as to ensure the transparency and openness of State service, as well as to prevent corruption and acts of a corrupt nature in State service; the court (judge) must also assess, in each case, whether the use of the information in question for the purposes of investigating misconduct in office of a corrupt nature is in line with the principle of proportionality, and whether the said legitimate aims could be achieved in a particular case by other less restrictive means. 86.7. ... Thus ... it should be held that a State servant or official about whom information has been collected secretly in accordance with the procedure established by the Law on Criminal Intelligence, after such information has been used in investigating misconduct in office of a corrupt nature committed by him or her, has the right, under Paragraph 9 of Article 5 of the Law on Criminal Intelligence, to apply to the court (judge) referred to in this paragraph and raise questions of the legitimacy, necessity, and proportionality of the use of such declassified information, as well as challenge the admissibility of such information as evidence. As mentioned above, under the Constitution, a person must be afforded effective protection against the possible arbitrariness of public authorities, namely an opportunity to apply to a court and to lodge an appeal against the lawfulness, reasonableness, and proportionality of the collection of the criminal intelligence in question about him or her and of the transmission of that information under Paragraph 3 of Article 19 of the Law on Criminal Intelligence for the purposes of investigating misconduct in office of a corrupt nature.” 51. As summed up by the Constitutional Court, in the above-mentioned ruling it held that the legal measure, consolidated in Article 19 § 3 of the Law on Criminal Intelligence, pursuant to which criminal intelligence information could be declassified and used only for the purposes of the investigation of misconduct in office which had the characteristics of a corruption-related criminal act, for the commission of which a State servant or official faced the risk of the most severe official penalty being imposed – dismissal from the position in State service – was justified by constitutionally important objectives, such as ensuring the proper functioning of State service, its transparency and openness, and preventing corruption and acts of a corrupt nature in State service. This was a necessary and proportionate measure in a democratic society in order to achieve the objective of official liability in accordance with the Constitution, that is, to create preconditions for the proper application of official liability as a public form of control over servants or officials of a democratic State and for their accountability to society, for acts that were incompatible with the requirements, arising from the Constitution, of State service as a system and for State servants or officials. After providing for the possibility of declassifying criminal intelligence information relating to an act which had the characteristics of a corruption-related criminal act and using it for the investigation of misconduct in office of a corrupt nature, the right to the protection of private life, enshrined in Article 22 of the Constitution, and the right to enter State service, enshrined in Paragraph 1 of Article 33 thereof, were not restricted more than was permitted by the Constitution, since the essence of those rights had not been denied. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 52. The applicant complained of a lack of access to the materials from the secret surveillance against him, those materials having served as the basis for his dismissal from service. He also maintained that there was a lack of a proper and precise legal framework indicating how information gathered when employing criminal intelligence actions could be used and its lawfulness contested. 53. Although in support of his complaints the applicant relied on both Article 6 § 1 and Article 13 of the Convention, the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), finds that the essence of the applicant’s grievance is related to the fairness of the court proceedings concerning the lawfulness of the surveillance against him and those regarding his dismissal from service. The complaint thus falls to be examined under Article 6 § 1 of the Convention alone, which is the special norm vis-à-vis Article 13 (see also, mutatis mutandis, Airey v. Ireland, 9 October 1979, § 35, Series A no. 32), and, in so far as is relevant, reads as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” AdmissibilityThe submissions by the parties The submissions by the parties The submissions by the parties 54. In their initial observations of 6 November 2020 and 9 February 2021, the Government argued that, having regard to the fact that the domestic judicial proceedings concerning the disciplinary penalties were still pending, it would be premature for the Court to deal with the applicant’s complaints under Articles 6 and/or 13 and Article 8 of the Convention. 55. The Government also submitted that the applicant’s conduct had been contrary to the purpose of the right of individual application. In support of this suggestion, they firstly appeared to argue that, although in his application of 23 March 2018 the applicant had complained to the Court that he had not received all the criminal intelligence information about the interception of his telephone communications in a timely manner, that information had been provided to him by the Department of Prisons as early as April 2017 (see paragraph 24 above). Secondly, the applicant had not informed the Court about any of the developments in the court proceedings about his disciplinary penalties, or about the fact that during those administrative proceedings he had received all the declassified documents regarding the criminal intelligence actions, even documents regarding secret entering of his office, which went beyond the scope of the applicant’s disciplinary liability (see paragraph 24 in fine above). The Government thus contended that the application should be rejected as an abuse of the right of application. 56. Lastly, on 21 May 2021 the Government informed the Court about the Supreme Administrative Court’s ruling of 29 April 2021 (see paragraphs 41-45 above), and considered that the applicant had had access to an effective remedy and a fair hearing, as required by Article 6 and/or Article 13 of the Convention. 57. The applicant did not comment. The Court’s assessment 58. The Court considers that the Government’s arguments regarding the timing and the amount of the criminal intelligence information disclosed to the applicant are intrinsically linked to the merits of his complaint that he did not have a fair hearing regarding his complaints of unlawful surveillance and his complaints about his dismissal. Furthermore, given the fact that both the applicant and the Government have been asked to inform the Court about the outcome of the pending litigation regarding the disciplinary penalties in respect of the applicant, the Court is not ready to find that the fact that it was the Government which sent the Court a copy of the Supreme Administrative Court’s ruling of 29 April 2021, and not the applicant, in and of itself means the applicant’s conduct amounted to an abuse of the right of application. Likewise, even if the Government argued that the applicant had received some or all of those previously classified documents, the fact remains that the court proceedings regarding the disciplinary penalties ended by a final court decision only on 29 April 2021, and it was only in those proceedings that the court examined the applicant’s grievances regarding the lawfulness and proportionality of the use of those documents during the disciplinary proceedings. The Court therefore cannot hold that the applicant can be regarded as having abused the right of application. 59. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe submissions by the parties The submissions by the parties The submissions by the parties (a) The applicant 60. The applicant complained that he had not been able to see in a timely manner the materials from the secret surveillance against him, although those materials had ultimately led to his dismissal, and notwithstanding the fact that State institutions had had access to that information. The applicant argued that there was a lack of a precise and proper legal framework indicating how information collected through criminal intelligence actions could be used and how its lawfulness could be contested. 61. The applicant also argued that although under Article 5 § 9 of the Law on Criminal Intelligence it was possible to complain about a breach of rights in connection with criminal intelligence actions, in the applicant’s case his complaints had been examined by the prosecutor, and then the Vilnius Regional Court only formally, in written proceedings, without making statements about specific criminal intelligence material. As a result, he had not been able to see the criminal intelligence materials or make statements in court. That process had not been fair and had not effectively protected his rights. (b) The Government 62. In their initial observations of 6 November 2020 and 9 February 2021, the Government argued that the applicant had had access to an effective remedy and had also had a fair hearing before a court with regard to his complaint about the lawfulness and proportionality of the criminal investigation measures, and the use of the information thus obtained in the subsequent disciplinary proceedings. Firstly, his complaints had been examined by the prosecutor and the Vilnius Regional Court (see paragraphs 18-23 above). Secondly, from the very beginning of the disciplinary proceedings the applicant had been afforded the opportunity to comment, and had commented, on the materials used against him, those materials having been disclosed to him to the necessary extent. Overall, he had been aware of the duration, scope and content of the criminal investigation measures employed. The applicant had received all the relevant materials relating to the criminal intelligence investigation, and the scope of the materials that he had received even exceeded the materials directly used in the disciplinary proceedings against him (see paragraphs 24 and 55 above). 63. As the Vilnius Regional Court had examined the applicant’s complaint regarding the lawfulness of the criminal intelligence measures in written proceedings, neither the applicant nor the prosecutor had participated in them physically, and therefore the principles of adversarial proceedings and equality of arms had been respected. 64. Lastly, referring to the content of the Supreme Administrative Court’s ruling of 29 April 2021 (see paragraphs 41-45 above), the Government contended that the lawfulness and proportionality of the intelligence measures, as well as the use of the information thus obtained, had been carefully and properly addressed, also having regard to the principles stemming from the Constitutional Court’s ruling of 18 April 2019. The Court’s assessment (a) General principles 65. The relevant case-law of the Court has been set out in Drakšas v. Lithuania (no. 36662/04, § 67, 31 July 2012); Pocius v. Lithuania (no. 35601/04, §§ 51 and 52, 6 July 2010); see also, more recently, Prebil v. Slovenia (no. 29278/16, § 42, 19 March 2019, and, mutatis mutandis, López Ribalda and Others v. Spain [GC], nos. 1874/13 and 8567/13, §§ 150 and 152, 17 October 2019). (b) Application of the general principles to the instant case 66. The Court finds that the applicant’s complaint may be understood as twofold: firstly, he pleaded not having been able to effectively contest the lawfulness of the authorities’ actions and decisions concerning the interception of his telephone communications; secondly, he contended that he had not been able to become familiar with and contest the materials obtained during that surveillance, even though those materials had led to his dismissal. The Court will address both issues in turn. 67. The Court finds that this case must be distinguished from the facts in Drakšas (cited above, § 68), where the applicant could not contest the lawfulness of the interception of his telephone communications in an effective manner. With regard to this point, the Court refers to Article 5 § 9 of the Law on Criminal Intelligence, which sets out two levels of appeal against such actions (see paragraph 47 above), this fact also having been noted by the domestic court (see paragraph 20 above). Accordingly, in the instant case the applicant put his grievances to the prosecutor, who examined his complaint and gave detailed answers, and afterwards to a court (see paragraphs 18-23 above). As it appears from the documents in the Court’s possession, before reaching his decision the prosecutor had obtained the criminal investigation file; even so, the prosecutor would only rely on the materials which were not classified (see paragraph 18 above). 68. The applicant’s appeal against the prosecutor’s decision was then examined by the Vilnius Regional Court, which gave detailed and specific reasons why it had been lawful and proportionate to use criminal intelligence measures against the applicant. Before reaching its verdict, the Vilnius Regional Court had ordered the Department of Prisons to provide it with the criminal intelligence materials (see paragraph 20 in limine above). As the court decision of 25 September 2017 reads, the Vilnius Regional Court entered into the merits of the applicant’s complaint concerning the lawfulness and proportionality of the use of the criminal intelligence measures (see, in particular, paragraph 21 above; contrast, mutatis mutandis, Prebil, cited above, § 44). This aspect was later pointed out by the administrative court, which also held that there had been no basis on which to hold that the authorities’ actions would have been in breach of the law (see paragraph 38 above). Given the documents previously made available to the applicant (see paragraphs 12 and 13 above; see also paragraph 24 above), the Court considers that he was able to formulate his claims to the necessary extent (contrast Pocius, cited above, §§ 51, 54 and 56). Even assuming that at the stage of the proceedings before the Vilnius Regional Court the applicant had not yet had access to all the criminal intelligence materials – a circumstance which in any case was remedied by the applicant having access to those materials at a later stage (see paragraph 70 below) -, the Court observes that the entitlement to disclosure of relevant evidence is not an absolute right. In any court proceedings there may be competing interests, such as national security or the need to keep secret certain police methods of investigation, which must be weighed against the rights of the defence (see Pocius, cited above, §§ 52 and 53), this having clearly been the situation in the case at hand. On the effectiveness of review, the Court has stated that a reviewing authority must be able to verify whether contested measures have been lawfully ordered and executed. In the case of retrospective review of the lawfulness of a surveillance measure, the applicant must, at the very least, be provided with sufficient information regarding the existence of an authorisation and the minimum level of information about the decision authorising secret surveillance (see Šantare and Labazņikovs v. Latvia, no. 34148/07, § 55, 31 March 2016, and the case-law cited therein). On the facts of this case, the Court finds that such information was provided to the applicant. The Court also does not lose sight of the legal rule that certain materials, such as those relating to the participants in the criminal investigation measures, may not be disclosed to individuals by law (see paragraph 47 above), this aspect having been underscored both by the Department of Prisons and the court (see paragraphs 12 and 13 above). 69. Last but not least, the Court considers that the fact that the proceedings before the Vilnius Regional Court were conducted in writing (see paragraph 20 above), does not mean, in and of itself, that the examination of the applicant’s complaints was in any sense formal, as alleged by him (see paragraph 61 above), or that the applicant was placed at a disadvantage vis-à-vis the State authorities – the Department of Prisons and the Prosecutor General’s Office – because the representatives of those institutions did not take part in that court hearing either so as to be able to counter the applicant’s written submissions to the Vilnius Regional Court (contrast, mutatis mutandis, Prebil, cited above, § 43). It follows, that each party had thus been given a reasonable opportunity to present its case under conditions that did not place it at a substantial disadvantage vis-a-vis its opponent. As the relevant case-law bears out, Article 6 § 1 is intended above all to secure the interests of the parties and those of the proper administration of justice (see Nideröst-Huber v. Switzerland, 18 February 1997, § 30, Reports of Judgments and Decisions 1997‑I), and to ensure that such fundamental principles as the right to adversarial proceedings and the principle of equality of arms have been respected. Besides, the Court notes that during the subsequent set of proceedings in which the lawfulness of the criminal intelligence measure against the applicant was examined afresh, the applicant consented to no hearing being held (see paragraph 35 above). 70. The Court also finds that the applicant’s main grievance lies in the fact that he was dismissed from his post on the basis of the materials gathered during the secret interception of his telephone communications, those materials containing factual allegations about the applicant’s behaviour. On this point, and as regards the factual grounds for his dismissal, the Court notes that as early as 2016, within the disciplinary proceedings, the Vilnius Regional Administrative Court obliged the relevant institutions to provide those documents, and, in accordance with the principle of equality of arms, the applicant was provided with numerous documents on which the disciplinary penalty had been based (see paragraph 36 above). It also transpires that relevant documents were provided to him in March and December 2017 (see paragraphs 12-15, and 24 in limine, above). Likewise, other declassified documents concerning the basis for the interception measure from the Department of Prisons, the Prosecutor General’s Office and the court were disclosed to the applicant in 2020 (see paragraph 33 above; contrast Pocius, cited above, § 57). 71. The Court also finds that the proportionality of the use of that information for the purpose of the applicant’s disciplinary liability was thoroughly examined and explained, firstly by the Vilnius Regional Administrative Court and then by the Supreme Administrative Court (see paragraphs 36-38, 41 and 42 above), both of which in turn relied on the Constitutional Court’s ruling on that issue (see paragraphs 36 and 41 above). As noted by the administrative courts, the applicant had not contested the reliability of that information (see paragraphs 39 and 43 above). The Court also takes into account the fact that, as pointed out by the Government, during the judicial proceedings regarding the disciplinary penalties, the applicant was even provided with the documents proving the lawfulness of the secret entry and surveillance that were not used in the disciplinary proceedings against him (see paragraph 24 in fine above). Similarly, the Court also does not lose sight of the fact that the applicant’s dismissal was based not only on the materials gathered through the interception of his telephone communications, but also on the entirety of the evidence, which included contracts with the telecommunications company and witness testimony (see paragraphs 39, 41 and 44 above). Thus, in the present case the applicant was apprised of the evidence against him and had the opportunity to respond to it. In addition, the applicant did not object to the hearing before the Vilnius Regional Administrative Court being held in writing, this having been for clearly objective reasons (see paragraph 35 above ). 72. That being so, the Court finds that the applicant had effective access to court for his complaints about the interception of his telephone communications and the use of the thus obtained information, and his complaints were given due examination by the domestic courts of both general and administrative jurisdiction. 73. The foregoing considerations are also sufficient to enable the Court to conclude that the applicant had effective access to court and that the decision-making procedure fully complied with the requirements of adversarial proceedings and equality of arms, and incorporated adequate safeguards to protect the interests of the applicant. 74. The Court holds that there has been no violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 75. The applicant further complained that the secret surveillance against him had been in breach of his right to respect for his private life, as provided in Article 8 of the Convention, which reads as follows: “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.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions (a) The Government 76. Referring to the Supreme Administrative Court’s analysis in the ruling of 29 April 2021, the Government contended that the applicant’s complaint regarding the use of information obtained during the criminal intelligence investigation in the criminal proceedings had been unfounded. (b) The applicant 77. The applicant made no comments regarding the admissibility of the complaint. The Court’s assessment 78. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 79. The applicant submitted that there had been no proper factual or legal basis to intercept his telephone communications. The factual basis for the criminal intelligence investigation had been his alleged abuse of office. That being so, and even though this information had not been confirmed during the first period authorised by the court, in order to obtain further information about any other possible offences committed by the applicant, the criminal intelligence officers had listened to his calls for an entire year. The applicant thus contended that, in the absence of evidence of a crime, the investigation should have finished after the initial period of three months. The applicant also argued that the judge authorising and extending the secret measures had based all the orders on identical and abstract reasons. Given that no pre-trial investigation had eventually been initiated, such measures could not be considered as a proportionate interference with his private life. The applicant was dissatisfied that, although the authorities had not identified any criminal offences in his respect, the information gathered was used to investigate his disciplinary offences. His right to privacy had been disproportionately restricted. (b) The Government 80. The Government admitted that there had been an interference with the applicant’s right to respect for his private life, given the interception of his telephone conversations and their use to investigate the applicant’s disciplinary offences. However, the interference with the applicant’s right to respect for his private life was in compliance with the requirements of Article 8 § 2 of the Convention, as it was lawful, it pursued a legitimate aim and it was necessary in a democratic society. The Court’s assessment 81. On the facts of the case the Court cannot but find that the interception of the applicant’s telephone conversations, the storage of that information and its disclosure in the disciplinary proceedings, which ultimately led to his dismissal, amounted to an interference with his right to respect for his private life (see, mutatis mutandis, Pocius, cited above, §§ 41-43, with further references). The Court has emphasised that telephone tapping is a very serious interference with a person’s rights and that only very serious reasons based on a reasonable suspicion that the person is involved in serious criminal activity should be taken as a basis for authorising it (see Iordachi and Others v. Moldova, no. 25198/02, § 51, 10 February 2009). The existence of the interference has not been disputed by the Government (see paragraph 80 above). 82. The cardinal issue arising in the present case is whether the interference so found was justified in terms of paragraph 2 of Article 8. This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions (see Rotaru v. Romania [GC], no. 28341/95, § 47, ECHR 2000-V, see also Drakšas, cited above, § 54). 83. In order for the interference established above not to infringe Article 8, it must first of all have been “in accordance with the law” (see Drakšas, cited above, § 55), a condition which has been met in the present case, given that the interference had a basis in the Law on Criminal Intelligence. The Court is also satisfied that the measure was authorised by the court (see paragraph 8 above). Accordingly, the authorisation to start monitoring the applicant’s telephone conversations had a legal basis in domestic law. The same conclusion holds true regarding the use of those materials within the disciplinary proceedings, as authorised by the prosecutor on the basis of Article 19 § 3 of the Law on Criminal Intelligence (see paragraph 25 above), that provision having been in force well before the applicant had committed the disciplinary offences, and the constitutionality of that provision having been confirmed by the Constitutional Court (see paragraphs 47, 50 and 51 above; compare Karabeyoğlu v. Turkey, no. 30083/10, §§ 78-84, 7 June 2016, and Eminağaoğlu v. Turkey, no. 76521/12, § 161, 9 March 2021). Besides, as to the requirement of foreseeability, it cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly (see Drakšas, cited above, § 67). In the present case the Court also finds that the absence of prior notification of interception was compensated for in the Law on Criminal Intelligence, accessible to the applicant, as that Law laid down strict conditions with regard to the implementation of the surveillance measures. 84. Regarding the legitimate aim, the Court observes that the applicant had been suspected of corruption-related activity – giving better conditions, as well as incentives, to inmates – for personal gain. Such actions, which could have led to inmates being released before they had reformed, demonstrated a danger to society (see paragraphs 21 and 22 above). In this context the Court notes the domestic courts’ finding that such activity, which the applicant was suspected of, and which was not entirely without basis (see paragraph 31 above), could have placed people outside the prison walls in danger (see paragraph 22 above). Furthermore, as pointed out by the Vilnius Regional Administrative Court, the applicant’s actions discredited the system of the execution of sentences, and were damaging to society’s trust in public service (see paragraph 39 above). Likewise, as emphasised by the Supreme Administrative Court, the use of information gathered during the secret surveillance against the applicant served the purpose of guaranteeing the transparency and openness of public service, and sought to ensure that the aims of statutory institutions were not ignored (see paragraph 43 above). Prevention of acts of a corrupt nature and transparency and openness of State service have also been listed among legitimate aims by the Constitutional Court (see paragraphs 50 and 51 above). Seeing no reason to depart from the domestic courts’ findings, the Court therefore holds that the interference pursued a legitimate aim – the prevention of disorder or crime, and the protection of the rights and freedoms of others – in pursuance of Article 8 paragraph 2 of the Convention. 85. The Court lastly turns to the necessity and proportionality of the interference. It observes that on 30 June 2015 the Vilnius Regional Court, acting on a request by the Prosecutor General’s Office, and on the basis of the information made available to that court by the Department of Prisons through the prosecutor, authorised the tapping of the applicant’s telephone on the basis of information that the applicant had been involved in corruption-related acts that amounted to an abuse of office (see paragraphs 6-8 above). As it appears from the prosecutor’s application, and as it was afterwards upheld by a court, by then other investigative measures had already been employed; however, they had been insufficient to investigate possible criminal activity (see paragraphs 7, 8 and 21 above). As later explained by the Vilnius Regional Court, that information included information about a particular inmate who had received better conditions in prison, and also incentives (see paragraph 21 above). Having regard to the facts of the case, the Court is ready to accept that the Vilnius Regional Court had sufficient reasons, based on specific information, to authorise and extend the measure of the telephone tapping (see also paragraph 8 above). Accordingly, the Court cannot find that the authorisation was without grounds or that the surveillance was “general” or “exploratory” (see Klass and Others v. Germany, 6 September 1978, § 51, Series A no. 28, see also Drakšas, cited above, § 56). Above all, on this last point the Court also reiterates that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. In principle, therefore, it is not for the Court to express an opinion contrary to that of the Vilnius Regional Court in its ruling of 30 June 2015 on the compatibility of the judicially ordered tapping of the applicant’s telephone with Article 10 of the Law on Criminal Intelligence (see Kopp v. Switzerland, 25 March 1998, § 59, Reports 1998-II, and Drakšas, cited above, § 56). 86. Furthermore, although the applicant implied that the interception of his telephone communications had been exploratory (see paragraph 79 above), the Court cannot subscribe to that statement, because, as was clearly explained by the Vilnius Regional Court, during each three-month period that the measure was extended, new events materialised which showed the applicant’s involvement in illegal activities, and information about “new concrete events” proved to be true (see paragraph 21 above). The duration of the interception did not exceed the maximum twelve-month period, as set out in the Law on Criminal Intelligence, which was also pointed out by the domestic court (see paragraph 21 above). Lastly, as noted by the Vilnius Regional Court, the interception was proportionate in view of the applicant’s position – he was the director of a protected incarceration facility – which significantly reduced other means for a criminal investigation (see paragraph 22 above). 87. As regards the proportionality of the use of that information in the disciplinary proceedings, the Court gives weight to the applicant’s position as the director of a prison, and the seriousness of the acts which were investigated, and thus does not dispute the Vilnius Regional Administrative Court’s finding that the fact that no criminal investigation had been opened in respect of the applicant, in and of itself, did not make the use of the information obtained unlawful in the disciplinary proceedings (see paragraph 38 above). The Court also notes that the use of the materials obtained during the criminal intelligence investigation was not limitless; rather, under Article 19 § 3 of the Law on Criminal Intelligence, it was restricted to acts of a corrupt nature (see paragraph 47 above). The proportionality of such use – in order to guarantee the effectiveness of the law enforcement institutions, and the need for a high disciplinary and moral standard for State officials, including the applicant, who was supposed to lead by example – was explained by the Supreme Administrative Court (see paragraphs 39 and 43 above). That court found that disciplinary offences, as committed by the applicant, had been established on the basis of the entirety of evidence, and the applicant had not contested the reliability of the collected information during the disciplinary investigation (see paragraphs 41 and 42 above). The applicant had also been able to contest the proportionality of the use of that information (see paragraph 41 above), this finding also having been reached by this Court (see paragraph 73 above). In the light of the foregoing, the Court finds that when assessing the necessity and proportionality of the use of such information for the investigation of the applicant’s disciplinary offences, the administrative courts followed the Constitutional Court’s guidelines and afforded effective protection of his rights (see paragraphs 50 and 51 above). The fact that there had been no disproportionate interference with the applicant’s right to privacy has also been noted by the domestic courts (see paragraphs 23 and 40 above). 88. Lastly, as noted by the administrative court, and as already established by this Court, the applicant had an opportunity to take part in court proceedings in an effective manner in order to contest the lawfulness and proportionality of the use of those materials (see paragraphs 41 and 73 above). 89. In the light of the foregoing the Court holds that the interference with the applicant’s right to respect for his private life may be regarded necessary and proportionate. 90. There has therefore been no violation of Article 8 of the Convention.
The Court held that there had been no violation of Article 8 of the Convention in the present case, finding that the interference with the applicant’s right to respect for his private life, namely the interception of his telephone conversations, the storage of that information and its disclosure in the disciplinary proceedings, which ultimately led to his dismissal, could be regarded necessary and proportionate. The Court gave weight, in particular, to the applicant’s position as the director of a prison, and the seriousness of the acts which were investigated.