Jozef Centes
Historical Development of
Interception Legislation in the Slovak
Republik
Studia Prawnoustrojowe nr 22, 181-194
2013
J o z e f C e n te s
G eneral Prosecutor’s Office of th e Slovak Republic Faculty of Law, Com enius U niversity in B ratislava
H isto r ic a l D ev e lo p m en t
o f In te r c e p tio n L eg isla tio n
in th e S lo v a k R ep u b lic
In th e period before 1989 interception was not regu lated by any legislati ve enactm ent in th e Slovak Republic. Employees of the M inistry of Interio r carried out interception task s by “intelligence service technology”, based on in te rn a l norm ative acts. Such in te rn a l norm ative acts were secret and m ade available only to a lim ited num ber of individuals. Interception was not p er form ed in conform ity w ith any law, and its resu lts could not be used as evidence in crim inal proceedings1. Interception legislation was introduced
only in the post-1989 period.
H isto r ic a l D e v e lo p m e n t o f I n te r c e p tio n L e g isla tio n in C rim in a l P r o c e e d in g s
The developm ent of interception legislation was influenced by social, political, and economic changes in Slovakia and also by changes in its legal system . In th e context of these changes shaping th e tran sfo rm atio n of Slova kia to a dem ocratic society respecting fu ndam ental rig hts an d freedoms, however, some negative effects occurred, as well. The negative im pact in the are a of crim inal law w as connected w ith the new forms of crim inal activities, organized crim e an d p e n etratio n of in te rn atio n a l organized crim e into the country. Legislators responded to th is situ atio n by introducing th e new in s ti tu te s of law. One of th em was “telephone interception”, th a t was first defined in § 88 of Act 178/1990 Zb., am ending th e Code of C rim inal Procedure (hereinafter: Act 178/1990), en terin g into effect on 1 Ju ly 19902.
1 For d e ta ils see D. P o v o ln y , O p e ra tiv n i te c h n ik a v ru k ou S tB , P ra h a , [o n lin e] <w w w .m vcr.cz/udv/cystavy/vystava 1/1 odp.htm l>, (quoted 2012-08-18).
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Legal requirem en ts of telephone inteception included th e following: a) in stig ation of crim inal prosecution,
b) specifying th e ex ten t of crim inal acts,
c) special regim e for g ran tin g interception orders,
d) d eterm inatio n of th e tim e lim it for law ful telephone interception, e) fact-finding significant for th e prosecution.
U nder th e provisions of § 88 (1) of Act 178/1990, telephone interception w as possible subject to th e in stig ation of crim inal prosecution. U nder the th e n legislation, in stig atio n of crim inal prosecution w as th e fu nadam ental condition for tak in g evidence in compliance w ith Title Five of th e Code of C rim inal Procedure. It needs to be noted here th a t telephone w iretapping w as not a law ful procedure before th e instigatio n of crim inal prosecution.
A nother stipu lation concerning interception was th e lim ited scope of crim inal offences defined as especially serious in ten tio n al crim es (§ 41(2) of th e C rim inal Code) or other crim inal ofences in w hich prosecution was req u ired by a prom ulgated in te rn atio n a l treaty. U nder § 88 (3) of Act 178/1990, telephone interception was law ful also in o th er crim inal offences, provided th a t th e telephone subscriber consented, and th a t crim inal proceedings were alread y being conducte for such o th er crim inal offence.
Telephone interception could be ordered by the presiding judge, and durin g prelim in ary proceedings, by th e prosecutor. U nder the provisions of § 88 (3) of Act 178/1990, telephone interception could be ordered by the bodies active in crim inal proceedings3 only w ith th e consent of th e subscriber of th e intercep ted telephone line in case of crim inal offences o ther th a n those stip u lated in § 88 (1).
The provisions of § 88 (2) of Act 178/1990 specified the p a rticu la rs of a w ritte n o rder to in tercept telephone com m unications, nam ely: w ritte n form, justification, determ ining th e tim e lim it for interception (w ith th e d u ratio n not precisely specified by th e Act). The interception w as secured by th e n atio n al police (called th e N ational Security Corps). The m andatory condition of a telephone interception order was th e existence of reasonable cause for establishin g th e facts significant for th e crim inal proceedings. U n der th e Code of C rim inal Procedure interception of telephone com m unica tions betw een th e defence counsel and th e accused person w as not perm itted.
U sing th e record of intercep ted telephone com m unication as a piece of evidence was subject to several conditions laid down in th e Act. A rep o rt was req u ired containing th e inform ation of th e place, tim e, legal grounds and contents of th e record, and th e record provider.
The provisions of § 88 were am ended by A c t 558/1991 Zb. a m e n d in g t h e C o d e o f C r im in a l P r o c e d u r e a n d t h e A c t o n t h e p r o t e c t i o n o f
3 The bodies active in crim inal proceedings defined by § 12 (1) o f Act 178/1990 included th e court, the prosecutor, the in vestigator and the police.
s ta t e s e c r e ts (hereinafter: Act 558/1991), en terin g into effect on 1 J a n u a ry 1992. The Act expressly excluded interception of telephone com m unications betw een the defence counsel an d th e accused as inadm issible. The Act in tro duced th e duty to inform th e organization in charge of th e telecom m unica tions netw ork operation in th e district in which th e interception was to be effected, of th e order and th e tim e lim it for interception. Iterception was m ade by a police authority.
Lawful interception under § 88 was further amended by A c t 247/1994 Z.z., a m e n d in g t h e C o d e o f C r im in a l P r o c e d u r e (hereinafter: Act 247/1994), en terin g into effect on 1 October 1994.
This am endm ent brought several changes to § 88 of the Code of C rim i nal Procedure. F irs t of all the ran g e of interception was extended also to oth er forms of telecom m unications services in addition to telephone in tercep tion, e.g. to telefax services. Legislatively th is change found its reflection in changing th is in stitu te into “in tercep tin g an d recording telecom m ucations operation”; and accordingly, th e term “interception of telephone com m unica tions” form erly used in § 88 of th e C rim inal Code was replaced by “in tercep tion and recording of telecom m unications operation”.
At th e sam e tim e, th e provisions of 88 (1) extended th e range of crim inal offences in which interception was perm issible in crim inal proceedings. More specifically, in § 88 (1) a reference was m ade in footnote No. 2 to § 2 to A c t o f t h e N a tio n a l C o u n c il o f t h e S lo v a k R e p u b lic N o. 249/1994 Z.z. o n c o m b a tin g le g a liz a tio n o f t h e p r o c e e d s o f m o s t s e r io u s c rim e , o r g a n iz e d c r im e , i n p a r t i c u l a r , a n d a m e n d in g s o m e o t h e r la w s (herein a fter: Act 249/1994)4.
In relatio n to changes in § 88 (1) of th e Code of C rim inal Procedure, the term “crim inal prosecution” was replaced by th e term “crim inal proceedings”. A nother change stip u lated by Act 247/1994 lim ited law ful interception and recording telecom m unications operation by th e term of not m ore th a n six m onths. This tim e lim it could be extended by an o th er six m onths by the presiding judge of a panel, an d in case of prelim inary proceedings, by the prosecutor.
By a fu rth e r change it was possible to order and to effect interception and recording of private com m unications in crim inal offences other th a n those defined in § 88 (1) by a body active in crim inal proceedings (w ith the consent of the telephone subscriber).
Act 247/1994 also stip u lated th e conditions of law ful use of th e recording as evidence in crim inal m atte rs o th er th a n those for which th e interception
4 U nder § 2 (1) o f Act 249/1994, the Act w a s applicable in ca ses servin g to prevent, detect and p enalize the conduct of ind ividu als or legal e n tities in ten d in g to legalize th e proceeds of crim es defined in para. 2 and other crim es, w here the valu e o f the subject m atter o f such legalization w as very h ig h and it w a s intended or used for the purpose o f com m itting a crime.
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w as ordered. It w as adm issible w here th e crim inal proceedings were conduc ted also in th e crim inal m a tte r for a n offence defined in § 88 (1) of th e Code of C rim inal Procedure, or w here th e subscriber of th e intercepted telephone line so agreed.
At th e sam e tim e, th is Act also provided for the conditions u n d er which th e record of intercepted com m unication was to be destroyed. Such procedu re applied to cases w here th e interception and recording did not produce any facts relev an t to th e ctrim in al proceedings. The recording so obtained was to be destroyed in accordance w ith th e shredding regulations binding on th e relev an t body active in th e crim inal proceeding.
By Act 272/1999 Z.z. am ending Act 141/1961 Zb. governing crim inal procedure (the Code of C rim inal Procedure) as am ended, en terin g into effect on 1 Novem ber 1999, th e provisions of § 88 (4) were reform ulated as for the person m aking th e report.
The provisions of § 88 of th e C rim inal Code were also am ended by A c t 366/2000 Z.z., a m e n d in g A c t 141/1961 Zb. o n c r i m in a l p r o c e e d in g s (th e C od e o f C rim in a l P r o c e d u r e ) a s a m e n d e d (hereinafter: Act 366/2000), e n terin g into effect on 3 Novem ber 2000.
G enerally it m ay be m entioned th a t one of th e reasons for am ending th e Code of C rim inal Procedure was the adoption of Act No. 367/2000 Z.z. on th e protection a g ain st legalization of th e proceeds of crime, am ending also some oth er laws (hereinafter: Act 367/2000), en terin g into effect on 1 J a n u ary 2001. This Act repealed th e provisions of § 2 of Act 249/1994 listing the crim inal offences in w hich th e bodies active in th e crim inal proceedings could apply some of th e in stitu te s defined in th e Code of C rim inal Procedure in detecting crim e and prosecuting th e offenders. Interception and recording of telecom m unications operation was one of such in stitu tes. As of th e effecti ve d ate of Act 367/200, th e application of interception and recording of relecom m unictions operation by th e bodies active in crim inal roceedings could be lim ited because Act 367/2000 did not contain any provisions sim ilar to those of § 2 of Act 249/1994. Therefore, th is in stitu te w as re sta te d by Act 366/20005, which also extended th e list of crim inal offences in which in te r ception and recording of telecom m unications operation could be ordered, m ore specifically, e.g. in cases of corruption and abuse of power by public official (under § 158 of th e C rim inal Code).
These changes also concerned th e e n tity en titled to issue an order to in tercep t and record telecom m unications operation. In case of th e procedure u n d e r § 88 (1) of th e Code of C rim inal Procedure such order could be issued by th e judge, or th e presiding judge of a panel, and in prelim inary proce edings, the judge on the prosecutor’s proposal.
5 P. Stift, P o sled n a novela Trestneho p o r ia d k u - za k o n e. 3 6 6 /2 0 0 0 Z. z., „Justićna revu e“ 2001 (53), ć. 1, p. 54.
From th e legislative point of view, it m ay be noted th a t this enactm ent was m arked by legislative inconsistencies. More specifically, as of 3 November 2000, w hen Act 366/2000 came into effect, the prosecutor lost the auth ority to issue orders to intercept and record telecom m unications operation under § 88 (1) of the Code of Crim inal Procedure. On the other hand, however, the prosecutor could order interception and recording of telecom m unications ope ratio n w ith th e consent of th e subscriber of the telephone line under intercep tion or recording surveillance (§ 88 (3) of th e Code of Crim inal Procedure).
This legislation was not in agreem ent w ith th e case law of th e E uropean C ourt of H u m an R ights, u n d er w hich interception of com m unications w ith th e consent of th e subscriber of th e intercep ted telephone line w ithout a court order was in conflict w ith th e Convention6.
A nother change introduced by Act 366/2000 concerned justification of the order to in tercep t and record telecom m unications operation. Reasons needed to be given for each telephone line, and th e order was req uired to specify the person to which th e order applied. Such orders were considered classified docum ents containing m a tte rs of s ta te secret. This legislative eneactm ent em phasized th e need to secure secrecy in cases of interception and recording of telecom m unications operation in conform ity w ith Act of th e N ational Co- ucil of th e Slovak Republic No. 100/1996 Z.z. on th e protection of state secrets, service secrets, cryptographic security of inform ation, and am ending th e C rim inal Code, as am ended. By reasons of en suring efficiency of this in stitu te and its secrecy, th e resu lts of interception could be law fully used only after all the technical m easures securing interception and recording of telecom m unications operation have been accomplished.
U nder Act 366/2000, th e conditions for recording th e telecom m unications operation to be used as evidence in crim inal proceedings were more precisely defined. A w ritte n rep ort was req u ired to be atta ch e d tog eth er w ith the inform ation concerning th e place, tim e and legal ground of interception. V erbatim e record of th e telecom m unication m essage, which was not kept confidential, was included into th e files of th e case. This rep o rt was signed by th e au th o rity th a t m ade th e record. As assessed by expert lite ra tu re concerning th e A m ended Code of C rim inal Procedure, th e list of th e m eans of evidence was supplem ented by th e conditions u n d e r which evidence could be obtained in a law ful m anner. It was only w ith th is Act, th a t “th e fruits from th e poisonous tree doctrine” know n from th e Anglo-American legal system7 was introduced into our legal system.
6 See A. v. France of 23 Novem ber 1993 and M.M. v. the N eth erlan d s o f 8 April 2003 as appropriate.
7 I. Ivor, O brazovo z v u k o v y z a z n a m a ko d o k a z n y p ro s tr ie d o k v tre stn o m k o n a n i, [in:] Z b o r n ik p risp e v ko v z c elostatnej konferencie s m e d zin a ro d n o u su e a st’ou Teoreticke a p r a k tic k e p ro b le m y d o k a zo v a n ia k o n a n e j dna 15.12 .2 0 0 8, B ra tisla v sk a vysok a skola prava, B ratislava
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At th e sam e tim e, th e Code of C rim inal Procedure specified in g rea ter detail th e conditions in relatio n to th e e n tity carrying out interception and recording of telecom m unication activities as th e relevan t body of th e Police Corps (Office of th e C irm inal an d F inancial Police A dm inistration of the P residium of th e Police Corps).
The provisions of § 88 of the Code of C rim inal Procedure fu rth e r th en am ended by A c t No. 422/2002 Z.z., a m e n d i n g A c t N o. 141/1961 Zb. o n c r i m in a l p r o c e e d in g s ( th e C o d e o f C r im in a l P r o c e d u r e ) , a s a m e n d e d , a m e n d i n g so m e o t h e r la w s (hereinafter: Act 422/2002), e n terin g into ef fect on 1 October 2002.
Act 422/2002, § 12 (13) of the Code of C rim inal Procedure laid down “in in tercep tin g and recording telecom m unication activities, th e m eans of infor m ation technology used for th e purposes of crim inal proceedings shall m ean electronic, rad io tech n ical, p h ototechnical, optical, m echanical, chem ical an d other technical devices and equipm ent or th e ir sets used in a covert m an n e r”. This was for th e first tim e th a t th e law ful operative technology w as defined th a t could be used as a m eans of evidence in crim inal proce edings (§ 89 (2) of th e Code of C rim inal Procedure)8.
By Act 422/2002 th e term “telecom m unications operation” was chan ged to “telecom m uniactions activities”. U nder § 2 of Act 195/2000 Z.z. on telecom m unications telecom m unication activities m ean “estab lish in g and o perating telecom m unications equipm ent, establishin g and operating tele com m unications netw ork and providing telecom m unications services”.
A significant change resu ltin g from Act 422/2002 was th a t an order to in tercep t an d record telecom m unications activities could be issued already before th e in stig ation of crim inal prosecution. In th is context, it m ay be noted th a t this legislative en actm en t did way w ith w ith the differing views as for th e application of § 88 (1) of th e Code of C rim inal Procedure which w as inconsistent w ith § 88 (2) of th e Code of C rim inal Procedure9.
In essence th e problem rested in th e fact th a t th e provisions of § 88 (1) of th e form er Code of C rim inal Procedure provided for th e application of this in stitu te in full thro u gho u t th e en tire crim inal proceedings. On th e other h and, th e uprovisions of § 88 (2) of th e Code of C rim inal Procedure a u th o rized th e prosecutor to propose to th e judge to issue the order to intercept an d record th e telecom m unications operation only du ring prelim in ary proce edings (and not th rou g h ou t th e e n tire crim inal proceedings). O ther reasons for impossible application of th e procedure u n d e r § 88 (1) of th e Code of C rim inal Procedure thro u g ho u t th e e n tire crim inal proceedings (th us also
8 J. Ivor, M oderne d o k a zn e p ro s tr ie d k y o d h a l’o v a n ia a d o k u m e n to v a n ia k r im in a lity, „Kar- lovarska pravni revue“ 2010 (6), c. 4, p. 66.
9 Cf. for exam ple: E. Valko, M. Tim csak, O d p o e u va n ie a z a z n a m telefo n ickych rozhovorov a o ta zk y s ty m su v isia c e, „Justicna revu e“ 2002 (54), c. 5, p. 46.
before before s ta rtin g crim inal prosecution), existed due to th e provisions of § 158 an d § 26 of th e Code of C rim inal Procedure.
U nder § 158 (4) of th e Code of C rim inal Procedure “To verify the infor m ation concerning th e facts th a t indicate th e commission of a crim inal offen ce an d o th er m otions for crim inal prosecution, a prosecutor, an investigator and a police body shall secure th e necessary m aterials and explanations, identify and secure th e clues of crim inal offences; however, th ey are not be entitled, before th e in stig atio n of crim inal proceedings, to enagage in any acts defined u n d e r th e Title F our and Title Five of the Code of C rim inal Procedure except in cases of u rg en t or un recu rrin g acts or acts u n d e r § 113, 113a and 114”. Interception and recording telecom m unications operation10 were not included am ong such acts.
In addition, reference should be m ade to th e provisions of § 26 of the Code of C rim inal Procedure defining jurisdiction of th e courts and procedu res w ithin prelim inary proceedings (however, not before th e in stigation of crim inal prosecution). Due to legislative absence of court procedures before th e com m encem ent of crim inal prosecution, th e procedure u n d er § 88 (1) of th e Code of C rim inal Procedure was, in fact, inapplicable in th is stage of crim inal proceedings.
On th ese grounds, th e provisions of § 88 (2) of th e Code of Crim inal Procedure h ad to be changed by Act 422/2002 so th a t th e order to intercept and record telecom m unications activities could be issued in w riting prior to crim inal prosecution or during prelim in ary proceedings by a judge acting on a proposal by a prosecutor or, in th e proceedings before the court, by a judge or by the presiding judge of a panel also in absence of such proposal.
Through this Act also th e subject-m atter jurisd iction in relatio n to th e judge in crim inal proceedings was established. U nder § 26a of th e Code of C rim inal Procedure, th e order to in tercep t and record telecom m unications activities prior to th e in stig atio n of crim inal prosecution and during the prelim inary proceedings was w ith in the ju ritsd ictio n of th e relev ant Regio nal C ourt or th e H igher M ilitary C ourt in th e d istrict w ithin th e jurisdiction of th e prosecutor who m ade th e relev ant proposal. In addition, th e Code of C rim inal Procedure m ade it possible for th e prosecutor to issue such order in u rg en t cases. The order issued by th e prosecutor required confirm ation by th e judge w ithin 24 hours, otherw ise th e order becam e void. The inform ation obtained upon th e order issued by th e prosecutor b u t not confirmed by the judge was inadm issible as evidence in crim inal proceedings an d h a d to be
destroyed w ithout delay in th e proescribed m anner.
It m ay also be m entioned th a t u n d er Act 422/2002, interception and recording of telecom m unications activities betw een the defence counsel and
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th e accused were perm issible u n d er different circum stances. Generally, w he re it was found th a t during interception and recording of telecom m unica- tionc activities th e accused com m unicated w ith his/her defence counsel, the inform ation obtained in th is m an n er could not be used for th e purposes of crim inal proceedings and h ad to be destroyed w ithout any delay. Such infor m ation could only be used in a different m a tte r in w hich th e defence counsel w as not rep resen tin g th e accused11. Before applying th is procedure, th e body active in crim inal proceedings h a d to m ake careful considerations on w he th e r th e conditions req u ired by law were satisfied so th a t th e inform ation obtained in th is m an n e r could be used as evidence.
The next im p o rtan t change concerning § 88 of th e Code of C rim inal Procedure as a re su lt of th e effects of Act 422/2002 was th a t interception and recording of telecom m unications activities were perm issible w ith the consent of th e subscriber of the intercep ted or recorded telecom m unications equip m ent.
Legislative provisions contained in th e Code of C rim inal Procedure befo re th e adoption of Act 422/2002 (before 1 October 2002) allowed th e body active in crim inal proceedings (i.e. th e prosecutor, investigator or th e police body) to order, durin g prelim inary proceedings, interception and recording of telecom m unications operation w ith th e consent of th e subscriber of th e in te r cepted or recorded telephone line if th e crim inal proceedings were held for th e crim inal offence not listed in § 88 (1) of the Code of C rim inal Procedure.
Through Act 422/2002, th e legal situ a tio n changed. For th e purposes of prom oting judicial supervision concerning respect for fun dam ental rig h ts an d freedoms, it was provided th a t in crim inal proceedings conducted for inten tio n al crim inal offences oth er th a n those defined in § 88 (1) of th e Code of C rim inal Procedure, th e judge w as authorized to issue, upon proposal by th e prosecutor, (before in stigatio n of crim inal prosecution and during preli m in ary proceedings), a n order to in tercep t and record telecom m unications ativities. This procedure was possible only w ith th e consent of the subsctiber of th e in tercep ted an d recorded telecom m unications equipm ent. In th e proce edings before th e court, th e judge or the presiding judge in a panel could issue such o rder also in absence of such proposal1 2. By th is change, the
Slovak legislation becam e harm onized w ith th e case law of th e E uropean C ourt of H u m an R ights1 3.
Interception and recording of telecom m unications activities as such were carried out by the relev an t body of th e Police Corps (herein after th e “rele v a n t police au to rity ”), for th e purposes of all bodies active in crim inal proce
11 J. C entes, P ra v n a u p ra v a o d p o eu va n ia a z a z n a m u te le ko m u n ik a en y c h e in n o s ti p o nove- le T restneho p o r ia d k u, „Justicna revu e“ 2003 (55), c. 2, p. 174.
12 See § 88 (1) o f the Code o f C rim inal Procedure.
edings. The Code of C rim inal Procedure im posed on th e relev an t police au th o rity the d uty to continuously review the grounds for issuing the order to in tercep t and record telecom m unication activities u n d er § 88 of the Code of Crim inal Procedure. W here such grounds ceased to exist, interception and recording of telecom m unication activities had to be discontinued, also before th e expiry of th e set tim e lim it. The relev an t police au th o rity h a d to notify this fact to the e n tity w hich issued the order to in tercep t and record telecom m unication activities.
From th e point of view of th e changes in § 88 of the Code of Crim inal Procedure resu ltin g from Act 422/2002, it is also im p o rtan t th a t interception and recording of telecom m unications activities could be used as evidence in a n o th er crim inal case only if the crim inal proceedings were conducted for a crim inal offence defined in § 88 (1) of the Code of C rim inal Procedure. It was possible to use evidence in such o th er case after a crim inal offence was reported or found by th e police authority, th e in v erstig ato r of th e Police Corps or th e prosecutor. For th e purpose of usin g th e recording of telecom m u n ic a te s activities as evidence in an o th er crim inal case, its w ritte n record and th e inform ation concerning th e place, tim e an d legal grounds of in te r ception was required to be attached.
The legislative en actm en t governing th e use of recording telecom m uni cations activities as evidence brought by Act 422/2002 was in conformity w ith th e n a tu re and im poratance of th e in stitu te set forth in § 88 of th e Code of C rim inal Procedure.
In the in te re st of dealing w ith u rg en t m atte rs it was provided th a t the prosecutor could issue the order to in tercep t and record telecom m unications activities, provided th e following cum m ulative conditions were met:
a) the procedure was necessary before in stig atin g crim inal prosecution, b) the m a te r could not be delayed,
c) a prior w ritte n order by th e judge could not be obtained,
d) interception an d recording of telecom m unications activities was not connected w ith en terin g into a dwelling.
Such order h ad to be confirmed by th e judge w ith in 24 hours otherw ise it becam e void an d th e inform ation so obtained could not be used for the purposes of crim inal proceedings, b u t h a d to be destroyed w ithout delay in th e prescribed m anner. In addition, it was also stip u late d th a t th e jud ge’s approval was necessary w here interception was carried out w ith the consent of th e subscriber of th e intercepted telephone line, as th is in terfered w ith fu n d am en tal rights an d freedoms of the other person p articip atin g in the telephone conversation.
Moreover, Act 422/2002 im posed a d uty on th e au th o rity in charge of the interception to review continuously th e existence of legal grounds for which th e order to in tercep t an d record telecom m unications activities was issued.
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W here it was not the case, th e au th o rity was obligated to term in a te in te r ception.
The provisions of § 88 of th e Code of C rim inal Procedure were also am ended by Act No. 457/2003 Z. z., am ending Act No. 141/1961 Zb. on crim inal proceedings (the Code of C rim inal Procedure) as am ended, and am ending some o th er law s (hereinafter: Act 457/2003), en terin g into effect on 1 December 2003.
C u rren t le g is la tio n o f in t e r c e p tio n p r o c ed u r e in c r im in a l p r o c e e d in g s
The conditions an d th e purpose of interception are set forth in th e first sentence of § 115 (1) of th e Code of C rim inal Procedure: “In crim inal proce edings in cases of felony, corruption, abuse of powers of a public official, legalization of th e proceeds of crime, or in case of an o th er in ten tio n al crim i n al offence in w hich crim inal proceedings m u st be instig ated as stip u lated by a n in te rn atio n a l treaty, an order to in tercept and record telecom m unications o peration m ay be issued, w here it m ay be reasonably expected th a t th e facts significant for crim inal proceedings could be found”.
The above provisions of th e Code of C rim inal Procedure set th e existence of legal conditions for th e application of th is in stitu te as follows:
a) th e existence of crim inal proceedings,
b) th e existence of a crim inal offence being th e subject-m atter of the crim inal proceedings,
c) reasonable cause to believe th a t th e facts significant for th e crim inal proceedings m ay be found14.
U n der § 115 (5) of th e Code of C rim inal Procedure interception and recording of telecom m unications operation is possible f o r a n i n t e n t i o n a l c r i m in a l o ffe n c e o t h e r t h a n those specified in § 115 (1). The provisions of § 115 (5) m ay apply subject to th e following cum ulative conditions:
a) th e existene of th e crim inal proceedings,
b) th e existence of in ten tio n al crim inal offence as th e subject-m atter of th e crim inal proceedings,
c) reasonable cause to believe th a t some facts significant facts m ay be found,
d) consent of the u se r of th e intercep ted or recorded telecom um inica- tions equipm ent.
The Code of C rim inal Procedure lays down as th e first condition for the application of th is in stitu te th e e x is te n c e o f c r i m in a l p r o c e e d in g s , defi
14 J. C entes, a kol., T restn y p o ria d o k s k o m e n ta r o m , Eurokodex, „Poradca podnikatel’a“ 2 006, p. 215.
ned by § 10 (15) of the Code of C rim inal Procedure, i.e. th e proceeding as the m ost general term m eaning the en tire proceedings reg u lated by the Code of C rim inal Procedure. In reg ard of its fu n d am en tal n atu re, interception m ay be considered m ainly in pre-judicial proceedings (procedures before th e in sti gation of crim inal prosecution, prelim inary proceedings).
The o th er condition for th e application of th is in stitu te is t h e e x is te n c e o f c r i m in a l o ffe n c e as th e subject-m atter of crim inal proceedings. The Code of C rim inal Procedure deals w ith ths conditions in two ways: by taxati- ve listin g of crim inal offences stip u lated in the Code of C rim inal Procedure (felony, corruption, abuse of power by a public official, legalization of the proceeds of crime), and by reference to in te rn atio n a l agreem ents. In tercep tion is perm issible in such cases, b u t it does not apply to all types of crim inal offences. C rim inal negligence is excluded from such offences.
The m ate ria l condition for an interception order is the reasonable cause to believe th a t by intercep tin g telecom m unications operation t h e f a c ts s i g n if ic a n t f o r c r i m in a l p r o c e e d in g s w ill b e e s ta b lis h e d . These facts m ean the facts defined especially in § 119 (1 a-c) of the Code of C rim inal Procedure w hich are m ate ria l for th e crim inal proceedings15.
In th e procedure u n d e r § 115 (5) of th e Code of C rim inal Procedure, compliance w ith the legal condition concerning the consent given by the u ser of th e intercep ted or recorded telecom m unications equipm ent is stipulated. This is a specific application of th is in stitu te , as one th e th e p a rties to the telecom m unicatios operation is aw are of interception, and thus has an ad vantage over th e o ther party. This is a sensistive issue, because in this m anner, the m ethod and th e form of th e use of inform ation technology m eans are being disclosed. For th ese reasons, a possible use of such intercep tion requires ex trao rdinary considerations.
U nder th e Code of C rim inal Procedure it is excluded to use th e resu lts of intercepted telephone com m unications betw een th e accused and h is/h er de fence counsel. This connected w ith th e fact th a t th ere are specific relations betw een the defence counsel an d th e accused based on m u tu a l tru s t. T here fore, th e client m ay address th e law yer w ithout any risks th a t h is/h er crim i nal activity will be reported. The contents of the com m unication betw een the defence counsel and the accused are to be kept secret betw een these two persons. The reaso n is obvious. The inform ation concerns th e crim inal activi ty and the en tire defense strategy.
Interception is conditioned by an order to intercept and record telecom m unications operation. Such order is issued by th e presiding judge in a p a
15 U nder § 119 (1) o f the Code of crim inal Procedure “The facts to be proved in crim inal proceedings include, in particular a) w h eth er the offence ocurred and w h ath er the act contains the e lem en ts o f a crim in al offence, b) w ho com m itted th e offence and on w h at m otives, c) serio u sn ess of th e offence inclu ding the reasons and conditions o f its com m ission”.
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nel before th e in stigatio n of th e crim inal prosecution, or in prelim inary proceedings by th e judge in charge of th e prelim inary proceedings acting upon th e prosecutor’s proposal. In m ate rs of urgency, w here th e prior order cannot be obtained from th e judge, such order m ay be issued before the instig atio n of crim inal prosecution or during prelim inary proceedings by the prosecutor, provided th a t such interception is not rela te d w ith e n terin g into a dwelling. The order by th e prosecutor m u st be confirmed by th e judge in charge of prelim in ary proceedings w ithin 24 hours, otherw ise the order beco m es void, and the inform ation so obtained m ay not be used for th e purposes of th e crim inal proceedings and m u st be destroyed w ithout delay in the prescribed m anner. In practice this power is rarely used by prosecutors.
C o n c lu sio n
Interception by a public au th o rity rep resen ts a serious lim itation of fu n d am en tal rig h ts and freedoms of individuals, p articu larly th e rig h t to privacy. L im itation of such rig hts m u st respect the values gen eratin g the concept of th e rule of law. W here any fu n d am en tal rig h ts and freedoms are in conflict w ith th e public in te rest, or w ith other fu nd am en tal rig h ts and freedoms, it is necessary to consider th e purpose (aim) of interference as far as th e m eans to be used concerns. The necessary preconditions in such cases include forseeability, reasonableness and proportionality of such in te rv en tion, especially w ith reg ard to th e aim w hich should be achieved and to the scope of lim itatio n of a fu n dam ental rig h t or freedom. W hen applying th e provisions lim iting fu ndam en tal rig h ts and freedoms, th e essence and reason m u st be considered to avoid any m isuse for th e purposes other th a n those for w hich they have been set. Alongside w ith th e form al an d m ate ria l conditions of interference w ith privacy, th e conditions adopted for th e protection of th is rig h t m u st be complied with. Any failure to comply w ith such conditions will re su lt in interference in consistent w ith th e in te rn atio n a l agreem ents on civil righ ts, th e law of th e E u ro p ean U nion and the C onstitution.
S u m m ary
H isto ric a l D evelopm en t o f In tercep tio n L eg isla tio n in th e S lo va k R ep u b lic
Key words: basic rights and freedom s, the right to privacy, correspondence, conveyed m essages, interception, interference.
Public in terv en tion into th e rig h t to privacy is a subject of in te re st to experts and th e general public as well. In recent years in th e Slovak R epu blic th e protection of correspondence an d confidentiality of m essages in re la tion to th e interception h as been a discussed issue. Eligible interception on th e one h a n d rep resen ts a m eans to perform th e task s of th e sta te to ensure th e safety and elim ination of security th re a ts. The ta sk is perform ed by the s ta te a t different levels-international, national, as well as in relatio n to individuals. On th e o th er hand, interception m eans a significant interference w ith th e fund am en tal rig h ts an d freedoms, notably th e rig h t to privacy, which is perm issible w ith in a fair balance betw een protecting th e rig h t to privacy and th e public in terest, w hich is serious enough to ju stify restric tions on th a t freedom. In view of th ese facts in the following text th e a tte n tion is paid to th e H istorical Developm ent of Interception Legislation in the Slovak Republic
S tr e s z c z e n ie
R o zw ó j h isto ryczn y p r a w a d o p ryw a tn o ści w R ep u b lice S ło w a cji
Słow a kluczowe: podstaw ow e praw a i w olności, prawo do pryw atności, korespondencja, pouf ność wiadom ości, ingerencja w prawo do prywatności.
Ingerencja publiczna w praw o do pryw atności je s t przedm iotem za in tere sow ania doktryny, orzecznictwa, ja k też opinii publicznej. W o statn ich latach n a Słowacji poddano pod dyskusję kw estie dotyczące tajem nicy koresponden cji i poufności przekazyw anych wiadomości. Z jednej stro n y ingerencja w praw o do pryw atności stanow i niew ątpliw ie środek służący w ypełnianiu podstawowych funkcji przez państw o tj. m a n a celu zapew nienie bezpieczeń stw a i elim inację zagrożeń. To zadanie je s t realizow ane n a różnych szcze blach: m iędzynarodowym , krajowym i w odniesieniu do poszczególnych je d n ostek. Z drugiej stro n y przed m io tow a in g ere n cją pozostaje w kolizji fundam entalnym i praw am i i wolnościami, a w szczególności z praw em do pryw atności. Ingerencja p ań stw a w tę sferę je s t możliwa tylko w ram ach
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spraw iedliw ej równowagi pomiędzy ochroną praw a do pryw atności a in te re sem publicznym , którego istotne zagrożenie uspraw iedliw ia nak ład an e na jedn ostki ograniczenia. N iniejszy arty k uł, m ając n a względzie doniosłość i ak tualność tej problem atyki, n aśw ietla rys historyczny przepisów praw nych zezwalających n a ingerencję p ań stw a w praw o do prywatności.
