RELEVANT LEGAL FRAMEWORK AND PRACTICE 62. The relevant legal framework and practice are summarised in the Court’s judgment in the case of Zoltán Varga (cited above, §§ 66-83). THE LAW PRELIMINARY REMARKS 63. In its Zoltán Varga judgment, the Court made, inter alia, the following preliminary remarks: “84. The Court notes that matters associated with the surveillance operation at the heart of the present ... applications have been a subject of concern and intense general interest for a decade or so. This has been reflected particularly in the media attention that the subject has been given and in the many associated and interrelated investigations and other types of official proceedings, some of which are still ongoing. 85. The Court further notes that the present ... applications are interrelated, between themselves and with the similar applications of [Mr Haščák]. They all comprise an extensive number of factual and procedural elements that have been submitted to the Court gradually as matters have evolved at the national level over time. 86. As a result, some of the facts and the parties’ observations submitted in the present proceedings before the Court have been superseded by further national developments. 87. In these circumstances the Court finds it opportune at the outset to delineate the parameters of the present ... applications for the purposes of its review. ... 89. In generic terms, the applicant’s complaints may be characterised as concerning the implementation of the three warrants, which to a large extent corresponds to the production of the primary and derivative material. He further complained about the partly past, and partly still persisting, retention of that and some other material, the alleged leak of information and associated procedural matters. 90. It is not disputed that the applicant was concerned by the implementation of the [impugned] warrants and that this implementation resulted in the production of primary, derivative and other material that also, at least in part, pertained to him. 91. It is likewise uncontested that, following their implementation, the [impugned] warrants were annulled by the Constitutional Court essentially as having been unlawful, that their implementation and the creation of various material on the basis thereof by SIS was found by the [BRC] to have violated the applicant’s right to protection of his personal integrity, and that some material originating from the implementation of warrants 1 and 2 was destroyed by the SIS in 2008, as was any other material stemming from the implementation of the [impugned] warrants that fell within the control of the BRC, in 2016 and 2017. 92. The issues remaining in dispute are essentially the effectiveness and exhaustion of other remedies, ... and the existence of adequate safeguards against abuse of State power. 93. As the present case involves an allegation of an individual interference with the applicant’s rights, there is no need for the Court to rule in abstracto on the Slovakian legislation regulating covert surveillance in the intelligence‑gathering context. Rather, the Court must confine itself to the circumstances of the case and take into account the nature and extent of the interference alleged by the applicant (see, for example, Pastyřík v. the Czech Republic (dec.), no. 47091/09, 31 May 2011).” 64. The Court finds that these remarks apply mutatis mutandis to the present case, in particular to the applicant’s complaints other than those made under Article 6 of the Convention. The Court will return to the issue of the scope of these complaints below. JOINDER OF THE APPLICATIONS 65. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 66. As regards the implementation of the two warrants, the applicant complained that there had been a lack of effective supervision and review, that the applicable framework provided no protection to persons randomly affected by surveillance measures, that that had resulted in the production of various items of intelligence material (which continued to exist or about whose destruction there were doubts), and that the internal rules applicable to its retention by the SIS were inadequate. Furthermore, the SIS had failed to prevent a leak of information originating from the implementation of the warrants, and the applicant did not have at his disposal an effective remedy in respect of the above complaints. 67. As in Zoltán Varga (cited above, § 95), the Court considers that these complaints fall to be examined under Article 8 of the Convention, the relevant part of which reads as follows: “1. Everyone has the right to respect for his private ... life ... 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’ arguments The parties’ arguments The parties’ arguments 68. The Government pointed out that the applicant’s constitutional complaint about the two warrants had been rejected as belated (see paragraph 11 above). Furthermore, in relation to the SIS, the applicant had had at his disposal and had resorted to effective remedies before the ordinary courts (an action for the protection of his personal integrity and claims for damages under the SL Act), the proceedings in respect of which were ongoing. In these actions, he had not sought any financial compensation. Therefore, in respect of his Article 8 complaints, the available domestic remedies had not been exhausted. 69. Furthermore, as to the alleged leak of information from the SIS, in their initial submissions before the Court the Government argued that no occurrence of any such leak had been established. However, in their submission of 10 November 2021, they added that the applicant had failed to raise any assertions in that regard in his action in the ordinary courts and in his constitutional complaints; he had thus failed to exhaust the available domestic remedies. 70. In so far as in his submissions made to the Court after the surfacing in 2018 of the above-mentioned audio recording (which was apparently related to the Gorilla operation) the applicant might be understood as seeking to challenge the investigative and prosecuting authorities’ use of that recording (see paragraph 73 below), the Government argued that this was a separate matter beyond the scope of the present case. 71. The applicant disagreed and contended that the remedies referred to by the Government were ineffective for the purposes of the Convention. Even though by way of precaution he had resorted to all existing remedies, this had yielded no results, the common denominator being the unwillingness of any official body to confront the substance of his grievances. 72. As to the Government’s specific argument in relation to any leak of information from the SIS, the applicant replied in his submissions of 9 December 2021 that he had “never unequivocally alleged that a leak had occurred and in fact, at the time the [present applications had been] lodged (2012 and 2016), that would not have been possible (there [having been] no evidence then or now upon which [the applicant] could [have based] such an allegation)”. 73. Nevertheless, in his earlier submissions of 2019, 2020 and 2021, he had informed the Court of the discovery and procedural use of the audio recording presumably originating from the Gorilla operation, had argued that its exploitation in criminal proceedings had been unlawful and in violation of his Convention rights, and had requested that the Court make it clear that the recording must be destroyed. The Court’s assessment (a) Scope of the complaints 74. The Court for its part notes at the outset that the parameters of its review in these proceedings are defined by (i) the content of the three applications and (ii) its decision – given at the time that the respondent Government were given notice of them (Rule 54 of the Rules of Court) – to declare a part of them inadmissible. Any complaints concerning the issuance of the impugned warrants by the BRC, in respect of which the Constitutional Court rejected the applicant’s complaint as belated (see paragraph 11 above), are outside the scope of the present case. 75. As regards the matter of any leak of information by the SIS, the Court is perplexed by the intended meaning of the applicant’s submissions to the Court prior to 9 December 2021. It notes their contents, as well as the finding in Zoltán Varga (§ 126) that there had been no claim made at the domestic level or before the Court (Rule 47 of the Rules of Court) regarding a failure to fulfil any positive obligation that the State might have in connection with the fact that material apparently having to do with the Gorilla operation was in the public domain. Accordingly, the Court concludes that there is in fact no complaint to be adjudicated in this respect. 76. On the issue of the practical and procedural status of the audio recording retrieved by the investigators in 2018 – the authenticity of which as a primary material from the Gorilla operation was addressed by the PPS in August and September 2021 (see paragraphs 56 et seq. above), and in respect of which the Court made no pronouncements in its Zoltán Varga judgment, delivered on 20 July 2021 – the Court likewise notes that this is beyond the subject matter of the present applications (Rule 47 of the Rules of Court). The Court is nevertheless not prevented from taking the status of that material into account by way of background information for the purposes of assessing the applicant’s original complaints (ibid., §§ 123, 124 and 127; see also paragraph 95 below). (b) Admissibility of the complaints 77. As to the remaining Article 8 complaints, the Court observes that in its judgment in Zoltán Varga (§§ 100 and 112 et seq.) it examined essentially the same non-exhaustion objection by the Government. In so doing, it noted that the objection concerned the implementation of the impugned warrants and the production by the SIS – and continued existence under its control – of the primary and derivative material resulting from their implementation. As the (i) implementation of those warrants and (ii) the production and existence of the said material had been intrinsically interrelated, the question of exhausting the available domestic remedies in that respect inherently correlated with the possibility of securing its destruction. Where the continued existence of the impugned material was in itself alleged to constitute a violation of Mr Varga’s rights, for a remedy to be effective for the purposes of the Convention it had in principle to be capable of leading to the destruction of that material, which the action advocated by the Government was not (ibid., §§ 114-18). 78. The Court notes that the applicant’s complaints and the parties’ arguments in the present case are essentially the same as those in Zoltán Varga, and so is the Court’s reasoning in respect of the rejection of the Government’s non ‑ exhaustion plea. Indeed, that reasoning applies in the present case a fortiori in view of the fact that Mr Varga’s action in the civil courts is still pending following an appeal on points of law by the SIS (see paragraph 40 above) – a fact that was not known to the Court at the time of the Zoltán Varga judgment (see its paragraphs 59 et seq.). 79. The Government’s non-exhaustion objection must therefore be dismissed. 80. In these circumstances, the Court notes that the applicant’s remaining Article 8 complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsParties’ arguments Parties’ arguments Parties’ arguments 81. The applicant argued that any records known to him regarding the destruction of the primary material by the SIS were not conclusive as to what exactly – and whether all of the primary material – had been destroyed. The BRC, as the court that had issued the impugned warrants, had repeatedly refused to exercise any supervisory jurisdiction in that regard. It was undisputed that the SIS still kept derivative material originating from the implementation of those warrants. The applicable statute provided that it could only be accessed by a court, but it contained no rules as to which court and within which context. Any details were to be governed by the internal rules of the SIS, which, however, were inaccessible to him. As to the other material kept by the BRC (which had meanwhile also been destroyed), the reason for its destruction had had nothing to do with the protection of his individual rights and, until that destruction, its being kept by the BRC had constituted an interference with those rights. The applicant concluded that none of the authorities to which he had turned for protection had provided him with any such protection – including the ordinary courts and administrative-law tribunals dealing with his actions and applications, the issuing court (the BRC), the Constitutional Court, the PPS, the Office of the Cabinet, Parliament and the SIS itself. 82. The Government contended that the crux of the applicant’s argument was that there was still in existence material that had been produced by the implementation of the two warrants and that it should be destroyed. In that regard, it was to be noted that, at the time of their implementation, those warrants had been valid and uncontested, and accordingly had had to be presumed lawful and justified. 83. As the domestic authorities had established, all primary material produced by the implementation of the warrants had been destroyed as unusable. In contrast to destruction of material obtained unlawfully, the destruction of unusable material did not necessitate the presence of a judge. Neither did any need for the presence of a judge during such destruction stem from the case-law of the Court. The applicant’s assertion that in the absence of judicial or similar guarantees he could not be certain whether all primary material originating from the surveillance under the two warrants had actually been destroyed was purely speculative and hypothetical, and the Convention imposed no duty on the States to refute such arguments. Nevertheless, he had been afforded (and through his lawyer had made use of) the opportunity to inspect a redacted version of the SIS minutes of the destruction on 2 April 2008 of the said material. 84. It was true that in 2012 the Constitutional Court had found a violation of a number of Mr Varga’s rights in connection with the warrants and had issued orders for their annulment. However, the court had reached that finding only after the primary material relating to their implementation had been destroyed in 2008. 85. The Government furthermore pointed out that any further material under the control of the BRC had also been destroyed, in 2016 and 2017, respectively. 86. As to the derivative material arising from the surveillance carried out under the two warrants, it had not been destroyed but had been stored, in compliance with section 17(6) of the SIS Act. As such, it could not be accessed by anyone but a court or be used in any proceedings before public authorities. The Government left it to the Court to determine whether this complied with the Convention. The Court’s assessment 87. Noting again that, to a significant extent, the applicant’s Article 8 complaints are identical and arise from an identical factual and procedural background to that examined in Zoltán Varga, the Court finds the case-law cited and applied in that case applicable in the present case accordingly. First of all, this concerns the questions of the applicability of Article 8 to the applicant’s complaints and the interference with his rights under that provision (ibid., §§ 144-49). As to the latter issue, the Court observes specifically that neither at any domestic stage nor before the Court has any authority questioned that the applicant was subjected to surveillance on the basis of the two warrants and that various items of material arising from their implementation and at least in part concerning him were or are still retained by the SIS and the BRC. On the contrary, this contention appears to have been acknowledged (by implication) as a fact. 88. The Court therefore finds that the implementation of the two warrants and the retention of the resulting material fell within the ambit of Article 8 of the Convention and constituted an interference with the applicant’s right to respect for his private life. 89. As regards the compatibility of that interference with the requirements of the second paragraph of that Article, and in particular with the requirement for that interference to be “in accordance with the law”, the Court would again refer to the general principles cited in cited in Zoltán Varga (§§ 150 and 151). It reiterates especially that, where a power of the executive is exercised in secret, the risks of arbitrariness are evident. Since the implementation in practice of measures of secret surveillance is not open to scrutiny by the individuals concerned or the public at large, it would be contrary to the rule of law for the legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see, for example, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006‑VII, with further references). (a) Implementation of the warrants 90. As to the compliance of this interference with the requirements of Article 8 § 2 of the Convention in respect of the implementation of the warrants, the Court found in Zoltán Varga that it had directly led to the production of the primary material, that the implementation of the warrants and the production of that material had been intrinsically connected, and that they were accordingly to be examined together (ibid., § 152). Moreover, it held that the implementation of the warrants had in principle had a statutory basis (§ 153), but that it had inherently been tainted by serious deficiencies in those warrants and in the associated procedures (§§ 154, 156 and 157). 91. The Court is aware that the deficiencies in question were found by the Constitutional Court when examining the individual complaints lodged by Mr Varga, but that a similar complaint lodged by the applicant was rejected as belated (see paragraph 11 above). Nevertheless, it notes that the deficiencies were attributable to the issuing court (the BRC) and finds that in essence they were of an objective nature (ibid., §§ 33 and 55). Accordingly, the fact that the applicant’s own constitutional complaint in respect of the BRC was rejected does not prevent the Court from taking those deficiencies into account in the assessment of what is at stake in the instant case – namely the implementation of the warrants by the SIS, in respect of which the Constitutional Court declined to issue a decision as it found that it had no jurisdiction in the matter (ibid., § 32). 92. The Court is likewise aware that, unlike in the case of Mr Varga, in the present case there was no finding by the ordinary courts that the implementation of the warrants by the SIS had violated the applicant’s right to the protection of his personal integrity (contrast § 59 of the Zoltán Varga judgment). It is, however, of the view that if this factual distinction made any difference at all to the assessment of the present case, it was to the benefit of the applicant. The reasons are twofold. 93. Firstly, the ordinary courts in the case of Mr Varga made no assessment of the actions of the SIS and based their findings – currently subject to an appeal on points of law (see paragraph 40 above) – on the quashing of the warrants by the Constitutional Court (ibid., §§ 154-55). Secondly, the fact that the outcome of an action brought by Mr Varga that was essentially identical to that brought by the applicant in the instant case has been even less favourable for the applicant than for Mr Varga accentuates the conclusion that the action in question has constituted no effective remedy in the applicant’s individual case. 94. Having considered all other means of legal protection against arbitrary interference (ibid., §§ 158-61), the Court concluded in Zoltán Varga that – in view of the lack of clarity of the applicable jurisdictional rules and the lack of procedures for the implementation of the existing rules and flaws in their application – when implementing the warrants the SIS had practically enjoyed discretion amounting to unfettered power, which had not been accompanied by a measure of protection against arbitrary interference, as required by the rule of law. It had accordingly not been “in accordance with the law” for the purposes of Article 8 § 2 of the Convention (ibid., § 162). 95. The Court finds that the situation in the present case is aggravated by two additional factors. Firstly, while it is accepted that the implementation of the warrant of 2005 interfered with the applicant’s right to respect for his privacy, there has been no indication that the warrant actually targeted him. It is accordingly plausible that he was affected in a random manner by its implementation, as he has contended. In that respect, the applicant further argued (and that argument has in no way been refuted by the Government) that the applicable law actually provided no protection to persons randomly affected by covert surveillance measures. Secondly, as appears to be exemplified by the recent controversy between the Prosecutor General and the OSP (see paragraphs 56 and 60 above), there is a protracted fundamental uncertainty in the applicable legal framework as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants. (b) Storing of the derivative material from the implementation of the warrants 96. As to the storing of the derivative material from the implementation of the two warrants, under section 17(6) of the SIS Act, the Court found in Zoltán Varga that it had been subject to confidential rules which had been both adopted and applied by the SIS, with no element of external control. Such rules had clearly been lacking in accessibility and had provided Mr Varga with no protection against arbitrary interference with his right to respect for his private life (ibid., § 169). The retention of the said material had therefore not been “in accordance with the law” within the meaning of the second paragraph of Article 8 of the Convention (§ 171). These findings directly apply in the present case. (c) Conclusions 97. It follows from the foregoing that, on account of the implementation of the two warrants and the retention by the SIS of the derivative material from their implementation, there has been a violation of the applicant’s right under Article 8 of the Convention to respect for his private life. 98. At the same time, in view of that finding and the reasoning behind it, the Court considers that it is not necessary to examine on the merits the remainder of the applicant’s Article 8 complaint. REMAINING ALLEGED VIOLATIONS OF THE CONVENTION 99. The applicant complained that the “reasonable time” requirement had not been respected in the Gorilla investigation and that by their public statements in relation to that investigation the prosecuting authorities and officials of the Ministry of the Interior had breached his right to be presumed innocent, as provided in Article 6 §§ 1 and 2 of the Convention, the relevant parts of which reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 100. The Government argued that as no charges had been brought against the applicant either expressly or in substance, his Article 6 complaints fell outside the scope of that provision ratione materiae. Moreover, they contended that the applicant could (and under Article 35 § 1 of the Convention should) have asserted any claims against the public officials who in his view had had interfered with his reputation by way of an action for the protection of personal integrity. Given that he had not done so, he had failed to exhaust the available domestic remedies. 101. The applicant argued that, given the circumstances, he had been substantially affected by the Gorilla investigation from the very moment that it had been opened. In his observations after the Government had been given notice of the present case he successively updated his complaint concerning the alleged violation of the presumption of his innocence in that it related to various public statements made in relation to the Gorilla investigation between 2012 and 2019. He explained that the gist of the complaint was that the impugned statements had strengthened his position as a person having in substance been charged with a criminal offence. Given that he was being denied that procedural status in the investigation, he had been prevented from defending his rights in it. The essential problem was thus the criminal proceedings. An action in civil courts for the protection of personal integrity had by no means any potential to redress it. 102. The Court notes first of all that the present two complaints concern the Gorilla investigation and not the charges laid against the applicant on 1 December 2020 or any public statements made in relation to them. 103. The common denominator of the two complaints is that for them to fall within the material scope of Article 6 of the Convention the applicant must have been charged with a criminal offence. As to the Gorilla investigation, it is clear that the applicant has never been charged with any offence in the context of it. Involving complex factual and procedural questions and a large number of possible offences (see paragraph 44 above), this investigation has been ongoing for some ten years. As acknowledged by the Constitutional Court (see paragraph 50 above), the investigation raises important societal issues and it is only natural that it is subject to public debate. In so far as this part of the application has been substantiated, there is no indication that any of the impugned public comments exceeded the limits of a legitimate public debate by referring to the applicant in a way going beyond the limits of Article 6 § 2 of the Convention (contrast Allenet de Ribemont v. France, 10 February 1995, § 41, Series A no. 308, and Khuzhin and Others v. Russia, no. 13470/02, § 94 and 96, 23 October 2008). 104. In that regard, the Court observes in particular that in view of the state of affairs in 2016 as regards any impact of the investigation on the applicant, the Constitutional Court concluded that there had been nothing to place the applicant in the position of being so substantially affected by criminal proceedings as to render him a person charged with a criminal offence in substance (see paragraph 52 above). While certain shortcomings in communication with the media on the part of the heads of the Gorilla investigation team had been acknowledged by the OSP, these were not such as to go beyond incurring civil-law liability for libel (see paragraphs 48 and 52 above). 105. As to any public statements (see paragraph 54 above) in the period after the finding and releasing into the public domain (2018) of the audio recording that appears to have a connection with the Gorilla operation, the Court notes that, rather than involving any criminal charge against the applicant in substance, they essentially reveal a lack of clarity as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants, which is a different matter that has been addressed by the Court under Article 8 of the Convention (see paragraph 95 above). 106. Accordingly, the Court concludes that neither the impugned public statements nor any other circumstance indicated by the applicant has placed him in the position of a person who has been charged with a criminal offence in the Gorilla investigation (see, for example, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, with further references; and Casse v. Luxembourg, no. 40327/02, §§ 16 and 74, 27 April 2006). In view of the nature of the matters that are the subject of the Gorilla investigation and their background, mere enquiries into them cannot be seen as involving charges against the applicant (contrast Šubinski v. Slovenia, no. 19611/04, § 68, 18 January 2007). 107. Accordingly, the remainder of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 109. The applicant claimed 66,000 euros (EUR) in respect of non ‑ pecuniary damage. 110. The Government contested the claim as being clearly excessive. 111. The Court awards the applicant EUR 9,750 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. 112. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Zoltán Varga v. Slovakia