CASE OF DRAKSAS v. LITHUANIA
Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque
5. The applicant was born in 1956 and lives in Vilnius. 6. 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. 7. 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: “Jurij Borisov (J.B.): So. He [the State President R. Paksas] said on television that Borisov isn’t on the list of his advisers and won’t be included. Algirdas Drakšas (A.D.): Won’t be on the list of his advisers? But I don’t understand. After all, you always said that [he would]. J.B.: A week ago he and I agreed that from Monday I would be on the list [of advisers to the President]. A.D.: I don’t know anything about this. J.B.: I am telling you – that was his promise. So he has been stressed for two days, because he has already betrayed me. You understand? He has already sold me. And he is stressed, he is afraid to meet. So I have told him, if by Monday he doesn’t fulfil any of his promises - not a single one for what I have done for him - I will begin to recover my money. I will have to go public, do you understand?... A.D.: I don’t know. I don’t know. I haven’t heard that, I don’t know. J.B.: Algis, I have recorded everything on tape, the tape will be ready tomorrow. A.D.: Damn, I don’t know that. I don’t know that. I know that you declared that you would act differently, that you wouldn’t go to the President’s Office because the salary is low there, that you wouldn’t manage to earn a living there. I know only that. J.B.: That was in the press. At his [the State President’s] request: “Jura, tell that in the meantime you won’t go [to work at the President’s Office]. And on Monday you will be [working] there”....That’s why he has already been suffering for two days, because he has lied on television. And I don’t know how he is going to walk away from this... Death to him as to the President. Tomorrow this lie will surface... That’s why he is restless... A.D.: I don’t know these facts, how can I give you an answer. J.B.: Algis, I am not asking you for an answer, I am just emotional, because I don’t know ... how I should go and talk to him. Because I have to go public and say everything now. Rolandas is such-and-such... We have agreed with him... And now: he went to Dalia [D.K.G. - adviser to the President], and [the President] has said that Borisov won’t harass you. I don’t know what she has told him. So the President, you understand, is a corpse already. A.D.: If it is easier for you, but you’re behaving improperly. J.B.: Algis, I haven’t done anything yet, so far I’ve done nothing. But he has sold me publicly already. A.D.: Calm down. He hasn’t sold you publicly; he is not that kind of person ... I don’t know that you are not going to be an adviser. That wasn’t discussed openly, there was no such idea, I haven’t heard about that. He hasn’t sold you publicly; I can’t imagine he would do that. He is not like that. J.B.: You see. Such is the fact... A.D.: Such fact can’t [be]... J.B.: Maybe you want to see the agreement with his signature? I’ll show it [to you] tomorrow. A.D.: I can only repeat what I’ve said. J.B.: Okay, Algis, have you called him? A.D.: What? I have called him, but he isn’t picking up his telephone.” 8. 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. 9. 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: “on the basis of the material in the case file of the operation it is reasonable to [tap the applicant’s telephone] in order to verify his involvement in the criminal activities described in the request: the information in the case file (the operative information and other data) confirms that [the applicant] could be linked to criminal acts which qualify as serious crimes; in order to establish all the relevant circumstances other operative measures had already been [exhausted], therefore a supplementary investigative measure [tapping of the applicant’s telephone] is to be authorised, pursuant to the rules of the Law on Operational Activities”. 10. 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”. 11. 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. 12. 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. 13. 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. 14. 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. 15. 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. 16. 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. 17. On 20 November 2003 the Attorney General requested information from the SSD regarding the leak. 18. 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. 19. 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). 20. 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. 21. 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. 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. 27. 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. 28. 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. 29. 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”. 30. 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. 31. 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). 32. The applicant lodged an administrative complaint against the refusal by the SSD to grant him access to the recordings of his telephone conversations. 33. 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. 34. On 12 October 2004 the Supreme Administrative Court dismissed the applicant’s appeal, upholding the reasoning of the lower court. 35. 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). 36. 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. 37. 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: “1. Operational activities are overt and covert intelligence activities by operational entities conducted in accordance with the procedure established by this Law. 2. Targets of operational activities are crimes being planned, being perpetrated, or already committed, persons engaged in planning or committing crimes or persons who have committed a crime, vigorous actions of these individuals in neutralising operational activities or by infiltrating law enforcement, national defence, or other government and administrative institutions, and activities of foreign intelligence services and other persons and events linked with State security matters.” “The tasks of operational activities shall be as follows: 1) crime prevention; 2) solving crimes and establishing the identity of the individuals who are planning, are engaged in or have already committed criminal acts; 3) protection of individuals from criminal influence; (...) 5) actions posing a threat to the constitutional order, its independence, economic safety of the State, or other important interests of national security (...); (...) 7) protection of State secrets; 8) investigation of the activities of the intelligence services of other States; 9) ensuring the safety of the entities of operational activities.” 1. The individual and citizens’ rights and freedoms may not be violated in the course of operational activities. Individual restrictions on these rights and freedoms shall be temporary and may be applied only in accordance with the procedure established by laws, striving to defend another person’s rights and freedoms, property and the security of the State and society (...). 3. It shall be prohibited to apply operational activities to the President of the Republic. (...) 6. In case the rights and freedoms of an individual and citizens have been violated, the entities of operational activities must restore the rights which have been violated and compensate the damage according to the procedure established by legal acts. 7. The classified information obtained in the course of operational activities, as well as that about a person’s personal and family life and information demeaning his or her honour or dignity may not be disclosed, with the exception of ... situations stipulated in Article 17 of this Law. 8. Within three months of the completion of the operational investigation and provided that the operational information about the target of the operational activities did not prove to be true, information about a person’s private life must be destroyed (...). 9. A person who considers that the activities of the entities of operational activities have violated his rights and freedoms may appeal against those actions to the chief of the entity of operational activities, a prosecutor or a court.” “An operational investigation shall be conducted, when: 1) information is held with respect to a serious crime being planned (...); 2) information is available regarding the activities of the special services of other States; (...) 6) protection of State secrets is being implemented; 7) information is available concerning actions which are endangering the constitutional system of the State, its independence, economic security ... or other important interests of national security.” “1. The covert monitoring of ... telegraph and other communications and the use of technical equipment in accordance with special procedure shall be authorised by the chairman of a regional court or the chairman of the criminal cases division of that court, on the basis of a reasoned recommendation by the Attorney General, the Assistant Attorney General, or ... a recommendation by the chief prosecutor of the regional prosecutor’s office or ... assistant regional chief prosecutor, that recommendation being based on the information submitted by the chiefs of the entities of operational activities or their authorised deputy chiefs. (...) 3. The implementation of actions recommended for aims of conspiracy concerning the actions indicated in paragraph one of this Article, may be authorised by any district court. 4. The request for covert monitoring shall indicate: 1) the name, surname and position of the officer who submitted the request; 2) a description of the target or the name and surname of the person in respect of whom operations shall be conducted; 3) facts (grounds) warranting a request to employ the operational activities; (...) 6) an estimate how long the operational measures will be applied; 7) the aim of the investigation. 5. The covert monitoring ... and the use of technical equipment according to special procedure shall be authorised for no longer than three months. This period may be extended (...).” “1. Classified operational information may be declassified according to the procedure established by laws and used as evidence in a criminal case (...). 2. Classified operational information may be used for other purposes in cases determined by the laws (...).” 38. The Code of Criminal Procedure reads: “1. Information about a pre-trial investigation shall not be made public. It may be made public only subject to a prosecutor’s authorisation and only to such an extent as is determined as permissible (...).” 39. 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. 40. 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).