PASTYŘÍK v. THE CZECH REPUBLIC
Inadmissible
Angelika Nußberger;Dean Spielmann;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger
The applicant, Mr Vladimír Pastyřík, is a Czech national who was born in 1972 and lives in Plzeň. He was represented before the Court by Mr K. Hrádela, a lawyer practising in Prague. In 2003 the police started to investigate a scheme to influence the outcome of matches of the Czech national football league by means of bribery. The public was interested in this investigation on account of the popularity of the sport in the country, where matches of the national league are followed closely. The press reported on the investigation regularly. As part of the investigation, several telephones were tapped. On 19 February 2004 a judge at the Brno Municipal Court (městský soud) ordered that the telephone of a certain I.H., who was president of a football club, be tapped from 19 February to 19 May 2004. That club was at that time the last but one in the national league rankings and thus faced demotion to a lower division for the next season. I.M. was suspected of bribing referees to influence the outcome of matches played by his team. On 27 February 2004, while I.H.’s telephone was tapped, the police intercepted a call with the applicant, a football referee at that time. The conversation included the following exchange: “I.H.: “We are fucked, really, it couldn’t be worse, dude. We have one last chance to reverse it somehow. We will see, the guys on the field must of course, because we play like shit. I would like to ask you a favour, should it turn out, I do not know, you were here last year, weren’t you? Applicant: “Yes, I was there, I was there. I.H.: “1:0 with Zlín in the last minute, dude, I’ll take that. That would be great.” Applicant: “Sure.” I.H. “Keep your favour and I will of course arrange some stuff with Jarda, I mean, what it takes to keep the favour, and there will be three dimes in it for you. Applicant: “Sure, see you on Sunday!” I.H.: “O.K. bye. Applicant: “Bye!” In Czech: “I.H.: “Úplně v prdeli, fakt už to horší nemůže bejt vole, máme poslední šanci ještě to nějak zvrátit, uvidíme. Musejí samozřejmě kluci na hřišti hlavně, protože hrajeme hovno. Chci tě poprosit, kdyby to dopadlo, jako nevím, ty jsi tu byl nějak před rokem asi viď? Applicant: “No byl jsem tam, byl jsem tam. I.H.: “Se Zlínem jedna nula v poslední minutě, ty vole, tak to beru, to by bylo super.” Applicant: “Jasně.” I.H.: “Zachovej přízeň a já samozřejmě s Jardou domluvím některý věci, jako co je potřeba, ať se zachová přízeň a třicetník je tam pro tebe no” Applicant: “Jasně, uvidíme se v neděli.” I.H.: „Dobrý, ahoj!“ Applicant: „Ahoj!“ The match concerned was won by I.H.’s team 2:0. On 30 July 2004 the police charged the applicant with accepting a bribe. On 19 September 2005 the Prague 3 District Court (obvodní soud) found the applicant guilty as charged. It found it established that the applicant had accepted payment of 30,000 Czech korunas (CZK) (1,200 euros (EUR)) for being favourable to I.H.’s team and thus influencing the results of the match. The court sentenced him to eight months’ imprisonment suspended for two years. The recording of the telephone conversation, which was played at the hearing, was the main evidence against the applicant. Other testimonies were heard and other evidence, which was mostly suggested by the applicant, adduced. The court did not admit other additional evidence relating to the quality of the telephone signal at the applicant’s home, considering it unnecessary. The applicant appealed, arguing, inter alia, that the tapping had been illegal and thus could not be used as evidence, that “three dimes” had been meant literally and thus only the equivalent of approximately EUR 0.01 had been at stake, that by “jasně” in the conversation he had not meant “sure” but “clearly” as in “I can’t hear you clearly” and that none of that had constituted a crime. On 4 January 2006 the Prague Municipal Court upheld the first-instance judgment, finding that the telephone tapping had been legal and endorsing the conclusions of the District Court in other respects. The applicant appealed on points of law, reiterating his arguments. On 9 August 2006 the Supreme Court (Nejvyšší soud) dismissed his appeal as manifestly ill-founded. The applicant lodged a constitutional appeal (ústavní stížnost) in which he complained of violations of his right to a fair trial and right to respect for his private life. He complained, in particular, that the telephone tapping had been illegal and the recording should not have been admitted as evidence, that the courts’ judgments had been insufficiently reasoned that their findings had been wrong, that the act he had committed had not constituted a criminal offence and that the courts had refused to admit evidence suggested by him. On 2 March 2009 the Constitutional Court (Ústavní soud) dismissed the applicant’s constitutional appeal as manifestly ill-founded. Regarding his claim as to the illegality of the telephone tapping, it referred to its earlier decision in the case of another accused in the bribery scheme. In that case the court found that the telephone tapping had been legal, because, inter alia, the investigation had been conducted in the context of criminal proceedings in respect of an intentional crime which fell to be prosecuted under an international treaty, namely, the Council of Europe Civil Law Convention on Corruption. The judge at the Municipal Court who had ordered the tapping, who had not subsequently been in any way involved in the criminal proceedings brought against the applicant, testified as a witness at the trial of another accused in the bribery scheme, where he made a negative statement about the character of the accused. Article 88 regulated telephone tapping: (1) In the context of criminal proceedings for a particularly serious intentional crime or any other intentional crime that falls to be prosecuted under an international treaty, the presiding judge, and at the pre-trial stage a judge on a proposal of a prosecutor, may order the interception and recording of telecommunications traffic, if it can be reasonably assumed that it will reveal facts relevant to the criminal proceedings. The interception and recording of telecommunications traffic between the lawyer and the accused is impermissible. If the police, while intercepting and recording telecommunications traffic, discover that the accused is communicating with his lawyer, they must stop the interception immediately, destroy the recording and not use the information learned in this context in any way. (2) A warrant for the interception and recording of telecommunications traffic shall be issued in writing and shall be reasoned. It must also state the period during which the interception and recording will be carried out, which may not be longer than six months. A judge may extend this period for another six months. The judge shall send a copy of the warrant to a prosecutor without delay. The police shall undertake the interception and recording of telecommunications traffic for all the prosecuting authorities. ... (4) If a recording of telecommunications traffic is to be used as evidence, it is necessary to accompany it with a report, giving the place, time, manner and contents of the recording, as well as the person making the recording. ... the recording can be used as evidence in a criminal case other than the one for which the telecommunications traffic was intercepted and recorded only if that case also concerns a criminal offence of the nature specified in paragraph 1... (5) If the interception and recording has not revealed any facts relevant to the criminal proceedings, the recording must be destroyed in the prescribed manner.