Disclosure of politician’s tapped conversations during proceedings on President Paksas’ impeachment case did not breach his right to private life

Disclosure of politician’s tapped conversations during proceedings on President Paksas’ impeachment case did not breach his right to private life
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery, any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution
In today’s Chamber judgment in the case of Drakšas v. Lithuania (application no. 36662/04), which is not final1, the European Court of Human Rights held:
-by a majority, that there had been:
A violation of Article 8 (right to respect for private life and correspondence) of the European Convention on Human Rights, on account of the leak of the applicant’s conversation of 16 March 2003;
No violation of Article 8 concerning the interception and recording of the applicant’s conversations and their disclosure during the Constitutional Court proceedings on President Paksas’ impeachment case.
-unanimously, that there had been:
A violation of Article 13 (right to an effective remedy) on account of absence of judicial review of the applicant’s surveillance after 17 September 2003;
No violation of Article 13 on account of not informing the applicant of the initial decision to tap his telephone and refusal to disclose to him the information gathered on him during the interception.
The case concerned a Lithuanian politician (one of the founding members of the Liberal Democrats political party, led by former President Rolandas Paksas) and the tapping of his telephone authorized by the authorities. He complained that the recorded conversations had been leaked to the media and later revealed on national television during the constitutional proceedings on President Paksas’ impeachment case.
As regards the disclosure of the applicant’s conversation of 16 March 2003, the Court found that, while the public had had a right to information about civil servants, the State Security Department should have kept the recording confidential. However, the disclosure of the applicant’s conversations (with his business partners and President Paksas) in the framework of Constitutional Court proceedings had been in accordance with the law and part of the judicial process. Press release ECHR
Principal facts
The applicant, Algirdas Drakšas, is a Lithuanian national who was born in 1956 and lives in Vilnius. A politician, he was one of the founding members of the Liberal Democrats political party, led by former President Rolandas Paksas.
On 16 March 2003 the State Security Department (“the SSD”) intercepted a telephone conversation between Jurij Borisov, a major contributor to the then President Paksas’ electoral campaign, and the applicant. On 2 November 2003 the recording of the telephone conversation was aired by the State-run and private national television channels LTV and LNK. The SSD denied any involvement in leaking the conversation.
Following a court order of 17 September 2003 authorising the tapping of the applicant’s phone – on the basis of his possible participation in various crimes – a number of conversations between Mr Drakšas and President Paksas and between Mr Drakšas and the President’s advisers were intercepted by the SSD. Mr Drakšas challenged the lawfulness of the tapping authorization with the domestic courts and the SSD, but to no avail. The Court of Appeal observed that Article 8 of the European Convention on Human Rights did not prohibit secret investigative measures as such, provided that the interference involved was necessary in the interests of national security or for the prevention of crime. The applicant’s request to obtain the information gathered about him by the SSD was also refused – as it had been declassified and transferred to the prosecutors as evidence in two sets of criminal proceedings unrelated to him – as well as his request to be informed about the results of an SSD investigation into the leak.
At the hearing of the Constitutional Court on 19 March 2004 in President Paksas’ impeachment case2, some of the applicant’s telephone conversations with the President, as well as the one recorded on 16 March 2003, were played. Given that the hearing was public and directly broadcast by national television, the conversations were aired. The subsequent applicant’s request for the opening of a criminal investigation to the disclosure of these conversations was dismissed on the ground that they were in accordance with the law and part of the judicial process. Mr Drakšas’ administrative complaint against the refusal by the SSD to grant him access to the recording of his phone conversations was also later rejected on the ground that they had wider implications and could not be regarded as concerning his private life. EHCR press release.