Krystyna Szczechowicz, Bogna
Orłowska-Zielińska
Chosen aspects of the protection of
private communication in legal
systems and the influence of the
European Court of Human Rights
jurisdiction of their formation by the
application of procedural telephone
interception
Studia Prawnoustrojowe nr 16, 265-279
2012
Krystyna Szczechowicz Bogna Orłowska-Zielińska
K ated ra P raw a Karnego M aterialnego Wydział P raw a i A dm inistracji UWM
Chosen aspects of the protection of private
communication in legal systems
and the influence of the European Court
of Human Rights jurisdiction on their formation
by the application of procedural telephone
interception
T he p r o te c tio n o f s e c r e c y o f c o m m u n ic a tio n
The rig h t to th e protection of secrecy of com m unication involves the rig h t to com m unicate (in any form; therefore, it can be w ritte n or sound, in th e form of a w riting consisting of alp h abet signs, im ages or o ther graphic symbols, sound signals etc.). The rig h t excludes en tities for which th e con te n t of th e inform ation tra n sfe rre d is not intended and the possibility th a t th e en tities, who are not the addressees of th e m essage, will get acquainted w ith a given pierce of inform ation1.
According to th e rig h t to privacy, an individual m u st be provided w ith th e possibility of an u n fettered estab lish m en t of a contact w ith o th er people, according to one’s choice, as well as th e possibility of deciding about the scope of inform ation disclosure2.
The legal system of dem ocratic countries provides th e ir citizens w ith the protection of th e secrecy of comm unication.
The case of G erm an constitution (Grundgesetz), whose first articles tre a t about th e issue in question, exemplifies th e essence and th e m eaning of the
1 A. B ojańczyk, K a rn o p ra w n e a sp e k ty ochrony p r a w a p ra c o w n ik a do ta je m n ic y k o m u n ik o
w a n ia się, „ P a le s tra ” 2003, no. 1 -2 , p. 45.
2 M. S afjan , P ra w o do ochrony życ ia p ry w a tn e g o , [in:] L. W iśn iew sk i (ed.), P odstaw ow e
ru le concerning th e pro tectio n of secrecy of com m unication. A rticle 10 g u a ra n te e s th e inviolability of th e secrecy of com m unication3. This p ro tec tio n is not absolute and it can be lim ited basing on a legal act. If the lim itation of such freedom serves th e purpose of protecting the dem ocratic stru c tu re s of a country, th e control of com m unication m ay tak e place w ithout th e subjects’ consent.
Similarly, in Poland th e art. 49 of th e C onstitution of th e Republic of Poland sta te s th a t the rig h t to protection of the secrecy of com m unication can be lim ited, however only for the reasons an d u n d e r th e conditions defi n ed by a legal act and in a way th a t is defined by th is act.
R egulations establish ed in p a rticu la r countries provide and allow in cer ta in cases to introduce lim itations in th e field of th e protection of secrecy of com m unication. It m ay be associated w ith th e necessity of providing a coun try w ith protection or, for instance, w ith fighting particu larly th re a te n in g crim es. However, only in a scope th a t is necessary in a dem ocratic country, not in a w ider one. The application of th e proportionality rule requires tak in g into consideration all th e goods th a t a certain n atio n al interference protects, as well as all th e goods th a t a p a rticu la r interference violates. W hile evaluating the necessity of introducing th e interference w ith th e righ t to secrecy of com m unication, one should tak e into consideration all th e social costs. P ostal an d telephone com m unication interception far intervenes w ith th e sphere of an individual’s rig h ts, especially w ith th e rig h t to privacy, u n co nstrained com m unication an d th e rig h t to keep th e confidentiality of correspondence. These rig h ts are protected by the In te rn atio n a l C ovenant on Civil and Political R ights4 and th e E urop ean Convention for th e Protection of H u m an Rights an d F u n d am en tal Freedom s5.
W ithout any doubts, in some cases th e interference w ith th e secrecy of com m unication in a m odern country is inevitable. A country w hich is obliged to provide safety stan d s before a difficult ta s k as it has to tak e into conside ratio n th e th re a ts of terro rism and organized crime. Technical im prove m ents, which influence th e fast pace of com m unicating and travelling, can be used by both the au th orities, for th e purpose of n ation al protection, and by th e crim inals.
The telephone com m unication interception, commonly know n as th e te lephone tapping, comprises one of th e m ost controversial sources of seizing evidence during a crim inal law suit. This kind of actions perform ed by the
3 G ru n d g esetz f ü r d ie B u n d e s re p u b lik D e u tsc h la n d , 1949, a v a ila b le a t: <h ttp ://w w w .g eset- z e -im -in te rn e t.d e /b u n d e sre c h t/g g /g e sa m t.p d f> (la s t v is ite d 26.03.2011).
4 I n te r n a tio n a l C o v e n an t o n C ivil a n d P o litic al R ig h ts o p en ed for s ig n a tu re a t N ew York 19.12.1966, ra tifie d b y P o la n d 3.03.1977, J.L . [D.U.] §167, n. 61.
au th o rities arouse intense reactions, discussions and suspicion associated w ith th e secrecy of th e telephone tapping.
The contem porary level of technical developm ent creates unlim ited po ssibilities of controlling citizens. W hile observing the contem porary life of an average E uro pean citizen it is h a rd to escape the im pression th a t we are p erm an ently u n d e r surveillance; we are followed by video cam eras a t work, banks, shops and schools. The developm ent of telecom m unication together w ith its digitalization (e.g. GPRS) enables (by recording th e data) to e s ta b lish th e location of th e person calling us. T hanks to such technologies the discretion of m illions of people is potentially th reaten ed . A telephone, also a mobile phone, h as become a reg u lar m eans of in terp erso n al com m unica tion. We keep in touch w ith our fam ilies, friends and acquaintances. In such a situ a tio n an d a t lea st in th is a re a an individual should be provided w ith th e h ighest level of security.
The experiences of th e contem porary dem ocratic countries indicate th a t th e executive power and its subjects are responsible for th e security and public order and are in th e possession of m eans whose application in th e nam e of th e public order m ay lead to th e destruction of the dem ocratic in stitu tio n s and th e reduction of civil rights. Such a situ a tio n occurs due to th e fact th a t confidentiality an d lack of ex ternal control can lead to an excessive autonom ization or subjectivization of th e very purpose of such actions. Moreover, it can lead to th e non-observance of a proper re s tra in t while in terfering w ith th e righ ts and civil liberties. Once in a while however, such situ atio n can resu lt from political reasons. If not, the featu re of the secrecy of th e com m unication interception m akes it more prone to abuse. Public safety being one of th e n atio n al goods ju stify th e lim itatio n of civil liberties, therefore, it req u ires preserving th e proportionality of an adm issi ble interference in th e nam e of security protection an d an efficient system controlling th e process of reta in in g such proportionality in practice. O therw i se, m easures applied while protecting the safety, such as a legally p erm itted telephone tapping, pose a risk to these freedoms them selves. This will occur w hen - first and forem ost - th e lim itations introduced are a rb itra ry and disproportionate to th e possible th re a ts an d - secondly - w hen th ey are excluded (eith er law fully or factually) from th e control exercised by dem ocra tic in stitu tio n s. Freedom and th e protection of th e secrecy of com m unication comprise one of th e fun d am en tal co n stitutional rules of every dem ocratic country.
C o m m u n ic a tio n in t e r c e p tio n in th e lig h t o f th e E u ro p ea n C o n v e n tio n o n th e P r o te c tio n o f H u m a n R ig h ts
a n d F u n d a m e n ta l F r e ed o m s a n d th e E u r o p e a n C ourt o f H u m a n R ig h ts ju r is d ic tio n
The basic docum ent which created th e fundam ents for th e E uropean system of h u m an rig h ts protection is th e E u ropean Convention on th e P ro tection of H u m an Rights and F u n d am en tal Freedom s drafted on 4th Novem b er 1950 in Rome, next modified by Protocols 3, 5 and 8 an d supplem ented by Protocol 2. The Convention is drafted by the Council of Europe and is available only for th e M em ber S tates of th e Council. The rig h t to respect for one’s private life an d one’s correspondence com prise one of the fund am ental h u m an rig h ts protected by th e Convention.
Article 8 of th e E u ro p ean Convention on th e Protection of H um an Rights an d F u n d am en tal Freedom s sta te s th at:
1. Everyone h as th e rig h t to respect for his private and fam ily life, his home an d his correspondence.
2. T here shall be no interference by a public au th o rity w ith th e exercise of th is rig h t except such as is in accordance w ith the law and is necessary in a dem ocratic society in th e in te rests of nation al security, public safety or the economic well-being of th e country, for th e prevention of disorder or crime, for th e protection of h e a lth or m orals, or for th e protection of th e righ ts and freedoms of others.
The p hrase “in accordance w ith th e law ” does not m erely refer back to th e dom estic law b u t also relates to th e quality of th e law, req uirin g it to be com patible w ith th e rule of law, which is expressly m entioned in the p ream ble to th e Convention. There m u st be a m easure of legal protection in th e dom estic law a g ain st a rb itra ry interferences by public au th o rities w ith the rig h ts safeguarded by art. 8 sec. 1. It is unlaw ful to allow th e discretion g ran te d to an executive to be expressed in term s of an u n fettered power. As th e consequence the legal m easure “m u st indicate th e scope of any discretion conferred on th e com petent au th o rities and th e m an n e r of its exercise w ith sufficient clarity to give th e individual adequate protection a g ain st a rb itra ry interferen ce”.
The jurisdiction of th e E uropean C ourt of H u m an Rights is unequivocal in term s of th e req u irem en ts concerning th e quality of regulations which control the appliance of th e telephone com m unication interception.
The foregoing issues were adjudicated in th e C ourt’s verdict regarding th e M alone v UK case from 2 th A ugust 1984. The following theses were adopted:
1. Since telephone conversation falls u n d e r th e concepts of b oth “private life” an d “correspondence” in a rt. 8 of th e Convention, in tercep tio n of a telephone call comprises “th e interference of public au th o rity in th e exerci se of th e rig h t safeguarded” in art. 8.
2. The p h rase “interference in accordance w ith the law ” does not only refer to n atio nal law b u t also to th e qu ality of such law, as it requires it being com pliant w ith th e Convention. The p h rase th u s im plies - and this follows from th e object an d purpose of art. 8 - th a t th ere m u st be a m easure of legal protection in dom estic law ag ain st a rb itra ry interferences by public au th o rities w ith th e rig h ts safeguarded by § 1. Especially, w here a power of th e executive is exercised in secret, th e risks of a rb itra rin e ss are evident. The req uirem ents of th e Convention, notably in regard to foreseeability, cannot be exactly th e sam e in the special context of interception of com m uni cations for th e purposes of police investigations as they are w here th e object of th e relev ant law is to place restrictions on the conduct of individuals.The req u irem en t of foreseeability cannot m ean th a t an individual should be e n a bled to foresee w hen th e au th o rities are likely to intercept his com m unica tions so th a t he can a d ap t his conduct accordingly. N evertheless, th e law m u st be sufficiently clear in its term s to give citizens an adeq uate indication as to th e circum stances in w hich an d th e conditions on which the police are em pow ered to reso rt to th is secret and potentially dangerous m easure.
3. Since th e im plem entation in practice of m easures of secret surveillan ce of com m unications is not open to scrutiny by the individuals concerned or th e public a t large, it would be contrary to th e rule of law for the legal discretion g ran ted to th e executive or to a judge to be expressed in term s of an u nfettered power. Consequently, th e law m u st indicate the scope of any such discretion conferred on th e com petent auth o rities and the m an n e r of its exercise w ith sufficient clarity to give th e individual adeq uate protection ag ain st a rb itra ry interference.
4. The interference w ith th e rig h ts resu ltin g from art. 8 can be conside red “necessary in a dem ocratic society” w hen the system of telephone com m unication interception adopted by th e police contains adequate gu aran tees ag ain st th e abuse6.
This is how th e E u ro p ean C ourt of H u m an Rights determ ined in the aforem entioned sta te m e n t an d others, th e requ irem ents tow ards th e n a tio nal law reg ulating the issue. Such law m ust be adequately accessible: the citizen m u st be able to have an indication th a t is adequate in the circum stances of th e legal rules applicable to a given case. Secondly, a norm cannot
6 See: M.A. N ow icki, E u ro p e jsk i T r y b u n a ł P ra w C zło w ieka - orzecznictw o, t. 2: P ra w o do
życia i in n e p r a w a , K rak ó w 2002, pp. 8 2 6 -8 3 1 ; E C H R d ecisio n o f 2 .08.1984 re g a rd in g M alone
be regarded as a “law ” unless it is form ulated w ith sufficient precision to enable the citizen to reg u late his conduct; he m u st be able - if need be w ith ap pro priate advice - to foresee, to a degree th a t is reasonable in the circum stances, th e consequences which a given action m ay entail. The indicated req u irem en ts are identical for both continental and common law.
The E urop ean C ourt of H u m an Rights evaluates th e interference w ith th e protection of p rivate correspondence first by exam ining the form al legali ty - th e existence of regulations of proper ran k , secondly by exam ining the su b sta n tia l legality - th e quality of regulations in force.
The E urop ean C ourt of H um an R ights sta te d th a t th e m ajority of v er dicts issued in th e 90’s violated art. 8 of the Convention alread y a t th e stage of exam ining th e form al legality7. This led to th e introduction of significant changes in the field of E u ro p ean countries legislation.
The verdicts of th e C ourt in K ruslin v. F rance8 and Huvig v. France cases (decision of 24th April 1990, art. 176-B, § 54-55)9 should be m entioned here. W ith reg ard to these cases th e E urop ean C ourt of H um an Rights form ulated th e m inim al g u aran tees, which an act referrin g to telephone tap p ing needs to include in order to protect ag ain st any violations.
Therefore, th e dom estic law should:
- define th e categories of people liable to have th e ir telephones tapped; F u rth erm o re it should determ ine:
- type of crim e which allows for th e appliance of telephone tapping; - th e lim it on th e d u ratio n of telephone tapping;
- th e procedure to be followed for exam ining, using and storing th e d ata obtained;
- th e precautions to be ta k e n w hen com m unicating th e d a ta to o ther p a r ties, m aking it possible to control th e recordings by a judge or defense; - th e circum stances in w hich recordings m ay or m u st be erased or th e tapes
destroyed, especially w hen th e investigation was discontinued or the court acquitted th e d efend an t10.
In these cases th e C ourt acknowledged th a t th e F rench system did not define the categories of people liable to have th e ir telephones tapp ed an d the type of crim es in connection to w hich a telephone tapping can be applied. Moreover, it did not stip u late th e procedure of p rep arin g reports concerning
7 See: L. G a rlick i, K o m e n ta rz do art. 8, [in:] K o n w en cja o O chronie P ra w C złow ieka
i P o d sta w o w ych W olności. K o m e n ta rz d o art. 1 -1 8 , W a rsz a w a 2010, p. 244.
8 See: d ecisio n of 24.04.1990; M. A. N ow icki, E u ro p e js ki T r yb u n a ł P ra w C złow ieka..., p p. 8 3 4 -8 3 8 .
9 C o m p are: M.A. N ow icki, E u ro p e js ki T r yb u n a ł P ra w C zło w ieka ..., p. 862.
10 See: M.A. N ow icki, E u ro p e js ki T r y b u n a ł P ra w C zło w ieka ..., pp. 8 6 0 -8 6 4 ; idem , Wokół
K o n w en cji E uro p ejskiej. K ró tk i k o m e n ta r z do E u ro p e jskiej K o n w en cji P ra w C złow ieka, W arsz a
w a 2002, pp. 2 8 2 -2 8 3 . T he C o u rt took a n id e n tic a l s ta n d in V a len z u ela C o n tre ra s v. S p a in - decisio n o f 30.07.1998, R D J 1 9 9 8 -2 .
replaying the recorded conversations an d did not determ ine th e regulations concerning storing or th e way of destroying the original recordings.
The aforem entioned decisions led to changes in th e F rench legislation system and to th e ad ju stm en t of the system to th e requ irem ents en u m erated in th e decisions of th e Court.
W hat enables m eeting th e req u irem en ts indicated by the Court during th e tria ls K ru slin v. F ra n ce 11 and H uvig v. France is first and foremost creating a catalogue of crim es in w hich a telephone tapp ing is allowed. It refers both to th e procedural interception of com m unication, nam ely th e one applied basing on th e crim inal and procedural regulations) an d extern al interception - conducted by th e com petent au th o rities as th e resu lt of opera tional actions.
It should also be sta te d th a t such a catalogue of crim es involving the appliance of telephone tap p in g is exercised by th e G erm an law.
According to § 100a of the G erm an Code of C rim inal Procedure (S tra
fprozessordnung) telephone m etering can be applied in case of:
1) ju stified circum stances which give bases to assum e th a t th e person included in th e telephone m etering is th e offender com m itting a catalogued offence (katalogtat) enu m erated in item s 1-5 of § 100a of th e Stafprozessord- nung,
2) necessity of telephone m etering to carry out crim inal proceedings12. The catalogue of offences (or crim es), which discusses cases in w hich the procedural interception and m etering of telephone com m unications can be adopted, is also included in th e Polish C rim inal Code in art. 237 § 3. Tele phone m etering is perm issible only w hen th e proceedings in force or the justified fear of com m itting a new offence refer to th e e n u m erated crimes.
The R u ssian C rim inal Code (У г о л о в н о - п р о ц е с с у а л ь н ы й к о д е к с Р о с с и й с к о й Ф е д е р а ц и и) however, does not include such a catalogue. It only sta te s in art.
186 § 2 th a t m etering an d recording telephone conversations can be adopted in cases of an average w eight and in crim es of a serious an d exceptionally serious n a tu r e 13. Additionally, art. 186 of § 2 stip u lates th a t if th ere is a risk of violence, extortion and o th er crim inal acts tow ards th e aggrieved person, w itness or m em bers of th e ir family, relatives and close people, th e in tercep tion an d recording of telephone conversations can be introduced by p u ttin g forw ard a w ritte n application an d in case of the absence of such application - basing on th e legal decision of th e court.
11 See: decision of 24.04.1990, A. 176-A : 2, M.A. Now icki, E u ro p ejski T ryb u n a ł P ra w C zło
w ieka ..., pp. 8 3 4 -8 3 8 .
12 B u n d e s m in is te riu m d e r J u s tiz , S tra fp ro ze ss o rd n u n g , a v a ila b le a t: <http ://w w w .g esetze- im -in te rn e t.d e /s tp o /> (la s t v is ite d 26.03.2011).
13 T he C ivil Code o f the R u s s ia n F ederation, 1996, av ailab le a t: <h ttp://w w w .roskodeks.ru/> (la s t v is ite d 25.03.2011).
It should also be m entioned th a t in the decision in connection w ith Silver and others v. th e U nited Kingdom14 case, th e C ourt sta te d th a t the reg u latio n w hich g ran ts legal discretion to th e executive power needs to determ ine the lim its of such discretion. If th e m easures of secret surveillance of com m unications are not open to by th e individuals concerned or th e public a t large, legal discretion of th e executive power cannot be expressed in term s of a n u n fettered power. It would be contrary to the ru le of law. The foregoing exam ple refers also to th e person of a judge and his being conferred w ith the power of m aking decisions reg ard in g the appliance of telephone m etering.
In the light of th e jurisdiction of th e E urop ean C ourt of H um an Rights it should be assum ed th a t th e situatio n in which a domestic law does not stip u late the type of offences in which a telephone m etering system can be applied is unacceptable and comprises the violation of art. 8 of the Convention.
This req u irem en t is not m et while using the general concepts, which provide th e au th o rities w ith a wide scope of discretion in term s of conside rin g th e appliance of telephone m etering. Such law does not provide the citizens w ith adequate inform ation concerning th e circum stances and condi tions in w hich th e auth o rities are authorized to act secretively and to in te r fere w ith the rig h t to respect for one’s p rivate life and one’s correspondence. It is unacceptable in th e light of th e C ourt’s jurisdiction.
The decision concerning th e Iordachi and others v. Moldova15 case sho
uld also be m entioned here. The E uro pean C ourt of H u m an Rights noticed th e violations of art. 8 of th e Convention by th e M oldovan auth orities, in te r alia violation concerning th e excessive scope of subjective operational con trol. The plaintiffs were m em bers or th e Law yers for H u m an Rights organi zation. They claim ed th a t th e form of th e Moldovan regulations concerning th e postal and telephone com m unications interception indicates th a t such m easures can be applied in cases reg ard in g unspecified serious crim es. As th e consequence, in th e opinion of th e plaintiffs telephone m etering could be applied in proceedings regarding over a h a lf crim es enum erated in the C ri m inal Code.
A nother requ irem en t, w hich was indicated by th e C ourt w ith respect to K ru slin v. F ran ce16 and H uvig v. France cases, and which a dom estic law
needs to m eet, is to define th e categories of people liable to have th eir telephones tap ped as th e resu lt of a w arran t.
According to art. 237 § 4 of th e C rim inal Procedure Code, in Poland a legally ordered telephone m eterin g can be applied towards:
14 D ecision of 25.03.1983, E C H R r e p o rt o f 11.10.1980, 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75.
15 E C H R d ecisio n o f 10.02.2009, 25298/02.
16 See: decision o f 24.04.1990, A. 176-A : 2; M.A. N ow icki, E u ro p ejski T ryb u n a ł P ra w C zło
• th e suspect person,
• th e defendant in th e broad m eaning, th a t is also the suspect, • th e aggrieved,
• o th er person who can be contacted by th e defendant, th e suspect and a m aiori ad m inus the suspect person (these can include fam ily m em bers, close acquaintances from work or th e place of living etc.), if th ere is d ata indicating the possibility of contacting such persons and tow ards,
• o th er persons, who m ay be rela te d to th e offender or involved in th e crim e, w hen th ere is d a ta indicating the potential possibility of such relation, for instance the abducted person’s neighbors or ranso m 17.
As it can be noticed from w h at h as been sta te d so far, th e catalogue of people liable to have th e ir phones tap p ed is unbounded.
A sim ilarly wide scope of subjects, tow ards whom th e telephone comm u nication interception can be applied, is stip u late d by art. 186 of th e R ussian C rim inal Code. It sta te s th a t telephone tapping can be applied tow ards a suspect, defendant and o th er persons in th e possession of inform ation which is im p o rtan t in th e crim inal case.
On th e oth er hand, th e G erm an Code of C rim inal Procedure stipu lates in § 100a th a t a telephone tap pin g can be applied tow ards people who are suspected of being th e offenders (or co-offenders) of crim es enu m erated in points 1-5 of § 100 an d tow ards people, who as facts suggest, exchanges m essages w ith th e defendant.
The A u stria n Code of C rim inal Procedure (Strafprozessordnung) allows th e application of telephone tap p in g when:
a) the telephone owner him self is suspected,
b) th ere are reasons for assum ing th a t th e suspect will contact the owner of th e telephone,
c) the telephone owner allows th e tap p in g 18.
W hile defining th e categories of people liable to have th e ir telephones tapped, the issue of adm issibility of applying such m easure tow ards the defender arises.
An a tte m p t of form ulating a stance in th is m a tte r should begin w ith the sta te m e n t of th e E uropean Court of H u m an R ights19 which indicates th a t every person who is in need of a legal advice should be en titled to being provided w ith one th a t enables a n unconstrained conversation. Hence, the relationship client - law yer is privileged. If the law yer is not able to ta lk
17 C o m p are: T. G rzegorczyk, K o d eks p o stę p o w a n ia karnego. K o m e n ta rz, K ra k ó w 2005, p. 290.
18 J u s lin e , S ta fp r o ze sso r d n u n g , B e r ü ck sich tig te r S ta n d d er G esetzgebung, 2011, av ailab le a t: <w w w .ju s lin e .a t/S tra fp ro z e sso rd n u n g _ (S tP O ).h tm l> (la s t v is ite d 25.03.2011).
19 C o m p are: C a m p b e ll v. U K , U K H L , 25.03.1992, A. 233, E C H R r e p o rt of 12.07.1990, 13590/88.
w ith his client in such a way, th e legal advice becomes useless and a problem associated w ith th e rig h t of defense an d th e reliability of th e tria l arises (art. 6 of th e Convention). The aim of th e Convention is to g u a ra n tee law s which are rea l and effective. The sam e th in g concerns, according to th e Court, the correspondence rela te d to deliberate legal actions an d legal proceedings in force.
It is difficult in such a situ a tio n to confer discretion to any au th o rity th a t would control th e talk s betw een th e law yer and his client an d only th en e v alu ate th em a fte r determ ining th e ch aracter of the conversations. This would m ake the foregoing law s illusory.
The C ourt’s decision reg ardin g th e Kopp20 v. Sw itzerland case should be m entioned here. The case concerned telephone m etering in a law yer’s office. In th e opinion of the C ourt th e observance of th e relationship client - law yer req u ires to assum e th a t all th e telephone conversations from and to the law yer’s office are professional in n atu re. The in te rp re ta tio n of Swiss a u th o rities w hich indicates th a t th e regulations enable them to reg ister and listen to law yers’ telephone conversations before determ ining w h ether they are included in th e professional im m unity, was not accepted by th e Court. Addi tionally, th e C ourt in its decisions relatin g to th e violation of art. 8 of the C onvention alw ays exam ines w h ether th e interference w ith rig h ts g u a ra n te ed by the article was necessary in a dem ocratic society. Thus, telephone com m unication interception, w hich includes p a rticu la r regulations being the resu lts of th e interference of such form of evidence seizure w ith the rig h ts g u a ra n tee d by th e Convention an d th e possibility of in terro g atin g th e law yer are not equal.
The stance of th e C ourt should be agreed w ith, since th e application of com m unication interceptions tow ards th e defender is unacceptable, sim ilarly to interceptin g law yer’s offices as they comprise the place of work in which a n uncon strained contact betw een th e law yer and th e client should be provi ded. The interference w ith th is type of contacts is not justifiab le in a demo cratic society.
A fter th e C ourt’s decision reg ard in g the change of Swiss regulations, art. 66 and 77 of th e federal act forbid th e telephone com m unication interception of law yers. P a ra g ra p h 147 of th e Code of C rim inal Procedure forbids control ling and m etering telephone conversations betw een th e defender an d th e suspect (defendant). Taking into considerations the fact th a t it is not clear w h eth er th e injunction is absolute, G erm an doctrine p resents various opi nions concerning th e issue. H .J. Rudolphi claim s th a t as long as th e defender h as not been excluded from p articip atin g in the tria l un d er th e § 138 of 1 Act no. 1, applying telephone com m unication interception tow ards him is u nac
ceptable, even if th ere is a ju stified suspicion th a t he cooperated w ith the defendant2 1. On th e o th er hand, W. Joecks allows th e possibility of in tercep tin g telephone conversations of th e defender if he is suspected of complicity, crim inal support or foiling crim inal proceedings2 2.
In the European legal systems, sim ilarly to the Polish one, the authority entitled to order telephone communication interception is the judicial authority.
In G erm any th e only au th o rity en titled to order telephone m etering is a judge - § 100b of Strafprozessordnung. However, sim ilarly to Poland, the law provides for th e situ a tio n w hen it is th e persecutor who is en titled to order it. Such situ a tio n is perm issible in case of a delay which poses the risk of losing th e inform ation or h u sh in g up or destroying the evidence of an offence. N evertheless, th e p ersecutor is obliged to have his decision approved by a judge w ithin 3 days. O therw ise th e order is invalid. In G erm an law it is assum ed th a t if the judge approves the prosecutor’s order after the 3-day-term, th e order should be reg ard ed as a new decision of th e judge concerning com m unication interception2 3.
The A u stria n Code of C rim inal Procedure (§ 149) stip u lates th a t the decision reg ardin g th e appliance of telephone m etering is m ade by th e court. Only in cases w hich are u rg en t such decision can be m ade by th e exam ining judge, who however needs to im m ediately obtain the court’s consent, in case of th e absence of th e consent th e device m u st be tu rn e d off and the recoding destroyed.
In th e legal system of th e U nited S tates of Am erica in th e light of general rules included in th e 4t h A m endm ent to th e U nited S ta te s C o n stitu
tion, th e adoption of telephone m etering is u n d er the control of th e court of law an d p erm itted by it. The absence of such procedure exposes th e police to th e risk of losing th e evidence - in accordance w ith exclusionary ru le which provides th a t evidence obtained illegally are generally not adm issible by the prosecution during th e defendant’s crim inal tria l2 4.
One of th e fu n d am en tal req uirem en ts a dom estic law has to m eet in term s of protecting ag ain st any violation or abuse of the rig h t which is to estim ate th e m axim um tim e during which telephone m etering can be adop ted, which should arise rig h t from th e act2 5.
21 C o m p are: H .J. R u d o lp h , G renzen d e r Ü b erw a ch u n g des F ern m eld e ve rk eh rs n a c h den
§ § 100 a, b StP o : F e s ts c h r iftfü F ried ric h S c h a ffs te in , 1975, p. 627.
22 C o m p a re : W. Jo e c k , D ie s tr a fp r o z e s s u a le T e le fo n ü b e rw a c h u n g , “J u r i s t i s c h e A rb e its b lä tte r “ 1983, p. 60.
23 H .J. R u d o lp h i, S y ste m a tis c h e r K o m m e n ta r z u r S tr a fp ro ze ss o rd n u n g u n d z u m G eric h t
s verfa ssu n g sg esetz: B esch la g n a ch m e, Ü b erw a ch u n g d es F er n m eld e ve rk eh a e rs R a s te r fu n d u n g , E in s a tz tech n isch er M itte l E in s a tz V erdeckter E r m itte l u n d D u rch su ch u n g , 1994, p. 95.
24 T. T om aszew ski, Proces a m e ry k a ń s k i. P ro b le m a ty ka śled cza , W arsz a w a 1996, p. 211. 25 See: M.A. N ow icki, E u ro p e js ki T r y b u n a ł P ra w C zło w ieka ..., p. 8 6 0 -8 6 4 ; idem , Wokół
K on w en cji E u ro p ejskiej..., pp. 2 8 2 -2 8 3 . T h e C o u rt took a n id e n tic a l s ta n d in V a len z u ela C o n tre
In the Valenzuela C ontreras v. Spain case of 30th Ju ly 199826 th e Court sta te d th a t the w a rra n tie s req u ired by the Convention should arise from the regulation s. In addition, in its decision concerning case P ra d a Bugallo v. Spain27 case, th e C ourt concluded th a t th e notion of preserving defective regulations supplem ented by a co n stan t court jurisd iction is a t variance w ith th e sta n d a rd s of th e Convention.
The Polish Code of C rim inal Proceeding m entions th e req u irem en t of estim atin g the m axim um tim e during which telephone m etering can be ad opted. Article 238 § 1 of th e Code sta te s th a t interceptin g and recoding telephone conversations can be introduced for th e period of 3 m onths m axi m um , w ith th e possibility of extending th e term in particu larly justified circum stances, by th e next 3 m onths.
Similarly, th e R ussian C rim inal Code also includes th e req u irem en t of estim atin g the m axim um tim e during which telephone m etering can be ad opted an d it am ounts to 6 m onths.
It is significant w hen determ ining th e fact w h ether dom estic law pro tects a g ain st the a u th o rities’ abuse properly, to ensu re th a t th e inform ation seized illegally as the resu lt of telephone m etering will not be used.
Basing on th e negative prem ises th e represen tativ es of the Polish law form ulate th e following inadm issibility in evidence concerning using the inform ation seized during th e tim e w hen telephone m etering was adopted; th ey occur when:
• th e telephone w as w ired despite th e absence of a court order - art. 237 § 1 of th e Code of C rim inal Procedure - or despite th e absence of a persecu tor’s decision in cases described in art. 237 § 2;
• th e telephone num ber which was w ired differs from th e one stip u lated in th e decision of the court of law;
• th e proceedings were continued despite th e fact th a t th e term of telephone m etering expired (art. 238 § 1 an d 2 );
• telephone com m unication interception was adopted in a different crim e th a n enu m erated in art. 236 or th e legal qualification of th e rim e has changed, as a resu lt it does not belong to th e catalogue of crim es en u m e ra ted in art. 237 § 1 of the Code of C rim inal Proceeding;
• th e decision concerning m etering th e telephone was issued before in s titu tin g legal proceeding or it was issued by an unau th o rized subject (for instance, police officer confided w ith an investigation)28.
It should be noticed th a t th e foregoing en um eratio n is not finite and comprehensive. The inadm issibility of evidence will be placed for exam ple on
26 See: M.A. N ow icki, E u ro p e js k i T r y b u n a ł P ra w C zło w ieka ..., p. 863. 27 D ecision of 18.02.2003, 58496/00.
th e inform ation seized during th e interception of th e defender. Such a co nversatio n could be recorded for exam ple during intercepting th e suspect, who held a telephone conversations w ith his defender.
Telephone m etering could also be adopted as th e resu lt of a ruse, con s tra in t or m isrepresentation. Therefore, the judicial auth o rities need to exa m ine every tim e w h ether th e recordings of telephone conversations can be additionally used. Sim ilar exam ples of inadm issibility of evidence concerning using th e recordings from th e telephone interception are p resen t in oth er legal system s.
In th e G erm an crim inal tria l, one cannot use th e inform ation seized during th e telephone interception when:
• a t th e m om ent of m aking th e decision concerning applying telephone m e terin g th ere was no ju stified suspicion of com m itting th e catalogued crim e (§ 100a of Strafprozessordnung), and other m easures enabled to detect the suspect’s place of stay or to explain th e necessary circum stances of the case;
• th e telephone m etering was applied tow ards an individual or in stitu tio n , w hich is protected ag ain st having th e ir telephone com m unication intercep ted. No decision regard in g determ ining w h ether in case of a delay which poses a d anger to th e case - th e prosecutor’s or th e prosecutions’ official’s decision concerning th e application of telephone m etering was issued; • th e period du rin g which th e telephone interception w as to be adopted
expired29.
According to the A u strian crim inal law th ere is a complete restriction tow ards th e inadm issibility of evidence reg arding using th e inform ation ob tain ed during telephone com m unication interception, if th e su b stantiv e cir cum stances sta te d in § 149 of Strafprozessordnung were not fulfilled and if th e procedure of w riting down th e telephone conversation w as inadm issible.
The A u strian law accepted the versatile regulation concerning th e s itu ation of ‘an accidental coming into possession of inform ation’. If th e ‘acciden tal e n try ’ refers to an additional crim e concerning the defendant, who provi ded a reason for ordering a telephone w iring, using such evidence is always possible - § 149 Act 3 point 1 of th e Strafprozessordnung. However, if the “accidental e n try ” com prises inform ation concerning com m itting a crim e by a th ird person, using such inform ation as th e evidence will be adm issible only w hen th e crim e is of such a serious n a tu re th a t it would ju stify the appliance of th e telephone interception itse lf - § 149 Act 3 point 330.
29 C o m p a re : H .J . R u d o lp h i, S y s te m a tis c h e r K o m m e n ta r z u r S tr a fp r o z e s s o r d n u n g ..., p. 108.
30 K. Schm öller, N a jn o w sz e ro z w ią z a n ia p r a w n e w za kresie z a k a z u w y k o r zy sta n ia do w o
The c u rre n t legal regulations in th e Polish, G erm an and A u stria n code of crim inal proceedings comply w ith th e sta n d a rd s concerning telephone com m unication interception ordered by th e law introduced by th e E uropean C ourt of H um an Right.
One should b e a r in m ind however, th a t th e restrictions, which resu lt from the regulations concerning crim inal and tria l proceedings and which refer to the interception of telephone com m unication, are directed a t a u th o rities associated w ith th e legal proceedings, th ey do not concern however, p rivate seizure of evidence w ith th e adoption of telephone tapping.
Therefore, th ere are no legal bases on the ground of, for instance the Polish law to reject such evidence seized by a p rivate person even in an unlaw ful way. The issue which em erges is w h eth er using th is type of eviden ce in a tria l, especially evidence seized as the re su lt of a crim e, does not violate th e rule of a fair tria l, w hich is m entioned in art. 6 of the Convention for th e Protection of H u m an R ights and F u n d am en tal Freedom s. The E u ro p ean Court of H um an Rights in th e decision regard ing Schenk v. Sw itzer lan d 31 case sta te d th a t despite th e fact th a t th e art. 6 of th e Convention g u aran tees the rig h t to a fair tria l, it does not estab lish any regulations concerning th e adm ission of evidence. Hence, th is notion is reg u lated by the dom estic law. Therefore, th e Court cannot exclude as a rule th a t th e illegal seizure of evidence is inadm issible. It needs to en sure w h eth er th e law suit w as entirely reliable. Some of th e judges who adjudicated in th is case had a different opinion. They sta te d th a t a court of law cannot rely not only on evidence seized unfairly, b u t first an d forem ost on evidence seized illegally. If th is occurs the tra il cannot be recognized as a fair one in th e light of the Convention.
W ithout any doubts issues w hich have a b earin g on th e protection of privacy and the secret of telephone com m unication and w hich are of such a significance for th e citizens, should be reg ulated in procedural acts. Along side w ith the technical developm ent, the possibility of surveillance, thu s, also telephone tapping, is enorm ous. The privacy of m any people is th re a te ned. This issue has stood out in th e recent years as th is type of evidence are su b m itted in a large num b er of cases. It is not legitim ate to allow situations in which the rig h ts g u aran teed in the Convention will exist only on paper, an d in th e reality they will be universally violated even in the m ost trivial cases. Very often th e inform ation from th e p rivate or even in tim a te life of th e th ird persons, not rela te d to the crim inal proceedings in any way, can be revealed.
S tr e s z c z e n ie
W ybrane a sp e k ty ochrony p r y w a tn e j k o m u n ik a cji w system ach p ra w n ych , a ta k że w pływ ju ry sd y k c ji E u ropejskiego T rybunału P ra w C zło w iek a n a ich p o w sta w a n ie
p o p r ze z sto so w a n ie p o d słu c h u telefonicznego
S łow a kluczow e: p raw o do k o m u n ik o w a n ia się, p ra w a fu n d a m e n ta ln e , p o d słu c h telefoniczny.
System praw ny p ań stw dem okratycznych zapew nia swoim obywatelom ochronę tajem nicy kom unikow ania się. W poszczególnych k rajach obok za gw arantow ania tego praw a w niektórych przypadkach wprowadzone zostały ograniczenia w zakresie ochrony tajem nicy kom unikow ania się. Może to być zw iązane z koniecznością zapew nienia ochrony indyw idualnej lub ochrony kraju. Bez w ątpienia zdarza się, iż ingerencja w tajem nicę kom unikow ania się je s t nieun ikn io na. Przechw ytyw anie kom unikacji telefonicznej - po wszechnie znane jako podsłuch telefoniczny - to jedno z najbardziej kontro w ersyjnych źródeł dowodowych. Ten rodzaj d ziałań podejm owanych przez władze budzi skrajne reakcje, dyskusje i podejrzenia.
