CASE OF IORDACHI AND OTHERS v. MOLDOVA
Violation of Art. 8;No violation of Art 13+8
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
7. The applicants were born in 1972, 1965, 1980, 1961 and 1980 respectively and live in Chişinău. They are members of “Lawyers for Human Rights”, a Chişinău-based non-governmental organisation specialised in the representation of applicants before the Court. 8. According to the applicants, after the coming to power of the Communist Party the number of violations of human rights increased considerably. In that context their organisation was created, whose sole purpose was the protection of human rights by assisting persons who sought to introduce applications with the European Court of Human Rights. 9. As a result, the applicants considered that they had caused the Government serious harm in terms of damage to their image and financial loss as a result of the findings of violation in cases they had helped to bring before this Court. 10. The applicants maintained that they ran a serious risk of having their telephones tapped as a result of their activity, due to the state of the legislation in force. They did not claim to have been victims of any specific interception of their communications, whether by telephone or post, and they had not instituted any domestic proceedings in that respect. 11. The Government disputed the allegation concerning the increase of the number of violations of human rights after the Communist Party had won the elections. 12. On 17 January 2008 one of the applicants wrote to the President of the Supreme Court of Justice and asked for statistical information concerning, inter alia, the number of applications lodged by the investigating bodies with courts for interception of telephone conversations and the number of successful and unsuccessful applications. 13. In a letter of 6 February 2008 the Head of the President's Office of the Supreme Court of Justice replied that in 2005 of a total of 2,609 applications for interception lodged, 98.81% had been successful; in 2006 of the 1,931 applications lodged, 97.93% had been successful; and in 2007 of the 2,372 applications lodged, 99.24% had been successful. 14. The Operational Investigative Activities Act of 12 April 1994 reads as follows: a) revealing attempts to commit crime; preventing, suppressing or discovering criminal offences and the persons who organise, commit or have already committed offences; and ensuring compensation for damage caused by a criminal offence; b) searching for persons who are evading the preliminary investigative authorities, the preliminary investigation or the court, or who are fleeing from a criminal sanction, or for persons who have disappeared; c) collecting information on events or actions which endanger the State or the military, economic or environmental security of the Republic of Moldova. ... (1) The Constitution, the present Law and other regulations enacted in accordance with them constitute the legal basis for operational investigative activities. (2) The authorities which are entitled to conduct operational investigative activities may issue, within the limits of their competence, in accordance with the law and with the consent of the Supreme Court of Justice and the General Prosecutor's Office, regulations governing the organisation, methods and tactics of carrying out operational investigative measures. ... (2) Anyone who considers that the actions of the authority which has carried out investigative measures have infringed his or her rights and liberties may lodge a complaint with the hierarchically superior authority, the General Prosecutor's Office or the courts. (3) In order to ensure a full and thorough examination of the complaint lodged by a person against whom operational investigative measures have been applied without due grounds, the authorities which have applied such measures shall, at the request of the prosecutor, present the latter with a record of every operational action taken on duty. Data concerning persons who have confidentially contributed to the conduct of operational investigative measures shall be presented only at the request of the General Prosecutor. (4) Should the authority (the official) exercising the operational investigative activity have infringed the legitimate rights and interests of natural and legal persons, the hierarchically superior authority or prosecutor shall take measures restoring such legitimate rights and interests, and afford compensation for the damage caused, in accordance with the law. (1) Operational investigative measures shall be carried out only in accordance with the law and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of offences, and the protection of health, morals, and the rights and interests of others. ...” In 2003 this section was amended as follows (amendment in bold): (1) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of very serious offences and the protection of health, morals, and the rights and interests of others. ...” The section was further amended in 2007 and currently reads as follows (amendment in bold): (1) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section 2. (2) For the purpose of accomplishing the stated aims, the authorities carrying out operational investigative measures are entitled, with due observance of the rules of secrecy, to: ... (c) intercept telephone and other conversations; ... The operational investigative measures provided for under ..., (l), ... may be carried out only by the Ministry of Internal Affairs and the Information and Security Service under the statutory conditions and only when such measures are necessary in the interests of national security, public order, the economic situation of the country, the maintenance of legal order and the prevention of serious, very serious and exceptionally serious offences, and the protection of health, morals, and the rights and interests of others. ...” Under Article 16 of the Criminal Code the serious offences are considered to be those offences which are punishable with imprisonment of up to fifteen years; very serious offences are intentional offences punishable with imprisonment of over fifteen years; and exceptionally serious offences are those intentional offences punishable with life imprisonment. Approximately 59% of all offences provided for in the Moldovan Criminal Code fall into the category of serious, very serious and exceptionally serious offences. “(1) The grounds for carrying out operational investigative activities are: (a) unclear circumstances concerning the institution of criminal proceedings; (b) information of which the authority carrying out an operational investigative activity has become aware in connection with: - an illegal act that is being prepared, committed or has already been committed, or persons who are preparing, committing or have already committed such an act, where the basis for instituting criminal proceedings is insufficient; - persons who are fleeing from a criminal investigation or the courts, or who are avoiding a criminal sanction; ... (c) instructions given by a criminal investigator, investigative body, prosecutor or court in pending criminal cases; (d) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section. ...” In 2003 this section was amended as follows (amendment in bold): (1) The grounds for carrying out operational investigative activities are: (a) unclear circumstances concerning the institution of criminal proceedings; (b) information of which the authority carrying out an operational investigative activity has become aware in connection with: - an illegal act that is being prepared, committed or has already been committed, or persons who are preparing, committing or have already committed such an act, where the basis for instituting criminal proceedings is insufficient; - persons who are fleeing from a criminal investigation or the courts, or who are avoiding a criminal sanction; ... (c) instructions given by an officer of criminal investigation, investigative body, prosecutor or court in pending criminal cases; (d) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section. ... (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious offences or are committing or have already committed serious offences, and only with the authorisation of the prosecutor pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The prosecutor must be notified within 24 hours. (3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the prosecutor shall be notified.” In 2003 this section was amended as follows (amendment in bold): (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit very serious offences or are committing or have already committed very serious offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) In urgent cases where otherwise there would be a risk of commission of serious criminal offences, it shall be permitted, on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity, to carry out operational investigative measures. The investigating judge shall be informed within 24 hours. He shall be presented with the reasons and shall verify the legality of the measures taken. (3) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority.” The section received further amendments in 2007 and currently reads as follows (amendment in bold): (1) Operational investigative measures which infringe lawful rights - the secrecy of correspondence, telephone and other conversations, telegraphic communications, and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious, very serious and exceptionally serious offences or are committing or have already committed such offences, and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority. ... (2) Should danger to the life, health or property of certain persons become imminent, interception of their telephone conversations or other means of communication shall be permitted, following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity, and the investigating judge shall give his authority. ... (1) In cases envisaged under section 7, bodies exercising operational investigative activities are entitled to carry out operational control. A record must be kept of any measure of operational control. (2) Operational control shall be carried out with the authorisation and under the supervision of the head of the body conducting it. The results of operational investigative measures applied shall be reflected in duly filed official operational documents. ... (3) Official operational documents shall be submitted to the prosecutor in order to obtain approval for carrying out operational investigative measures. (4) The operational control shall be suspended when the specific aims of the operational investigative activity set out in section 2 are accomplished or when circumstances are established proving that it is objectively impossible to accomplish the aim.” In 2003 paragraph 3 of this section was repealed. (1) The results of operational investigative activity may be used for preparing and carrying out criminal investigative activities and for carrying out operational investigative measures in order to prevent, stop or discover criminal offences, and as evidence in criminal cases. (2) Data obtained during operational control shall not constitute a reason for limiting the rights, liberties and legitimate interests of natural and legal persons. (3) Information about the persons, means, sources (with the exception of the persons who may provide assistance to the authorities carrying out such measures), methods, plans and results of the operational investigative activity, and about the organisation and the tactics of carrying out the operational investigative measures which constitute State secrets, may be disclosed only in accordance with the conditions provided by law. (1) Operational investigative activity shall be exercised by the Ministry of Internal Affairs, the Ministry of Defence, the Information and Security Service, the Protection and State Security Service, the Department of Customs Control attached to the Ministry of Finance and the Prison Department attached to the Ministry of Justice. ... ... Scrutiny, on behalf of Parliament, of operational investigative activity shall be exercised by the relevant permanent parliamentary commissions. The authorities which exercise operational investigative activities shall submit information to these commissions in accordance with the law. (1) Enforcement of the laws by the authorities carrying out operational investigative activities and the lawfulness of the decisions adopted by these authorities shall be supervised by the General Prosecutor, his or her deputy, and the municipal and county prosecutors...” 15. On 29 June 2007 the Ministry of Internal Affairs, the Secret Services and the Centre for Combating Organised Crime and Corruption enacted special instructions in accordance with section 4 (2) of the above Law. The instructions regulated the co-operation between the intercepting bodies and the telephone operators. In particular it obliged the operators to co-operate with the intercepting bodies in order to facilitate the interception of telephone conversations and to provide them with all the necessary information and with unlimited access to their networks. 16. The Code of Criminal Procedure in force until 12 June 2003 read as follows: The interception of telephone conversations or other means of communication used by a suspect, defendant or other person involved in a criminal offence may be carried out in connection with criminal proceedings instituted in accordance with a decision of the authority conducting the preliminary investigation or the criminal investigator with the authorisation of the prosecutor, or in accordance with a court decision, where such a measure is deemed necessary in a democratic society in the interests of national security, public order, the economic welfare of the country, the maintenance of order and the prevention of crimes, or the protection of the health, morals, rights and liberties of others. The interception of telephone or other conversations may not last more than six months. ... Conversations held over the telephone or other means of communication may be recorded. The interception and recording of telephone conversations or other means of communication shall be carried out by the criminal investigator unless the task is entrusted to the authority in charge of the preliminary investigation. In this case, the criminal investigator shall draw up a warrant and a decision concerning the interception, which shall be sent to the authority in charge of the preliminary investigation. At the same time the criminal investigator shall liaise with the authority in charge of the preliminary investigation or specify in the warrant the circumstances and manner of interception of the conversations and recording, modification and disposal of the information obtained. ... Following the interception and recording, a record shall be drawn up giving a summary of the content of the taped conversations relevant to the case. The tape shall be attached to the record and the part which does not relate to the case shall be destroyed once the judgment becomes final.” 17. The Code of Criminal Procedure, in force after 12 June 2003, in so far as relevant, reads as follows: The investigating judge ensures judicial supervision during the criminal prosecution by: ... 5. authorising the interception of communications, seizure of correspondence, video recordings;...” ... (1) The interception of communications (telephone conversations, or communications by radio or using other technical means) is carried out by the prosecution body on the basis of an authorisation issued by the investigating judge issued on the basis of a reasoned warrant of a prosecutor charged with the examination of very serious and exceptionally serious crimes. (2) In case of urgency, when a delay in obtaining an authorisation as stipulated in paragraph (1) could cause serious harm to the evidence-gathering procedure, the prosecutor may issue a reasoned warrant for the interception and recording of communications. She or he is obliged to inform the investigating judge about this immediately and no later than 24 hours after issuing the warrant. The latter is required to take a decision within 24 hours regarding the warrant issued by the prosecutor. When she or he confirms it, she or he authorises the further interception if necessary. When he or she does not confirm it, she or he orders its immediate suspension and the destruction of records already made. (3) The interception of communications may be carried out at the request of the victim of a crime, a witness and members of his/her family, in case of threats of violence, extortion or commission of other crimes affecting such parties, based on a reasoned warrant of the prosecutor. (4) The interception of communications during a criminal investigation is authorised for a maximum of 30 days. The interception may be extended on the same conditions if justified. Each extension cannot however exceed 30 days. The total duration cannot exceed 6 months. In any case, it cannot last longer than the criminal prosecution. (5) The interception of communications may be stopped before the end of the period for which it has been authorised, if the grounds initially justifying it no longer exist. (6) During a criminal prosecution, after the end of an authorised interception, and after having asked the opinion of the prosecutor who supervises and carries out the criminal prosecution, the investigating judge shall inform in writing the persons whose conversations were intercepted and recorded. This shall be done within a reasonable time, and must be done before the termination of the criminal prosecution. (1) The interception of communications is carried out by the criminal prosecution body. Persons whose responsibility is technically to facilitate the interception and recording of communications are obliged to preserve the secrecy of the procedure and the confidentiality of correspondence. They are liable in the event of a violation of their obligations under the provisions of articles 178 and 315 of the Criminal Code. A note must be made to the effect that they have been informed of these obligations. (2) A record of the interceptions and recording carried out by the prosecution body must be drawn up in conformity with the provisions of articles 260 and 261. It must record information about the authorisation given by the investigating judge, the intercepted telephone number or numbers and their addresses, together with details of the radio or other technical equipment used for conversations. The record must also indicate the name (where known) of the parties and the date and time of each separate conversation and the number assigned to the tape used for the recording. (3) Recorded communications must be fully transcribed and annexed to the record along with the authorisation of the criminal prosecution body, after its verification and signature by the prosecutor carrying out or supervising the criminal prosecution. Communications in languages other than the one in which the criminal prosecution is carried out shall be translated with the assistance of an interpreter. The tape containing the original recorded communications shall also be annexed to the record after having been sealed and after the stamp of the criminal investigation body has been applied. (4) The tape of the recorded communications, the transcript and the records of the interception and recording of communications shall be handed over to the prosecutor within 24 hours. The prosecutor shall assess which parts of the collected information are important for the case in question and draw up a record in this regard. (5) Original copies of the tapes along with the complete written transcript and copies of the records shall be handed over to the investigating judge who authorised interception of the communications for further storage in a special place in a sealed envelope. (6) The court shall adopt a decision regarding the destruction of records which are not important for the criminal case. All the other records shall be kept up to the moment when the file is deposited in the archive. Evidence collected under the provisions of articles 135 and 137 may be verified through technical expert examination by the court at the request of the parties or ex officio.” 18. Under section 15(5) of the Advocacy Act of 13 May 1999, a lawyer's professional correspondence can be intercepted only under the conditions provided for by law. Section 15 (13) provides that the confidentiality of a lawyer's correspondence with his client is guaranteed and that such correspondence cannot be intercepted.