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Right to Private and Family Life

III. Protection of Right to Private Life in Criminal Proceedings

The Constitution sets a high bar for the protection of the right to private life from law enforcement authorities. Personal correspondence, telephone conversations or any other communications are inviolable, with the collection of information concerning a person only being possible in cases where the measure concerned is provided for by law and mandated by a reasoned court decision.[1]

It is particularly important that in this case, what was mandated was the surveillance of journalists, not just any ordinary people; journalistic correspondence is afforded special protection by the European Convention on Human Rights, as its origins lie not only with the right to privacy, but also with the freedom of the press

The ability to collect information about a person's private life during pre-trial investigation is contained for in the Code of Criminal Procedure (CCP). The CCP provides that during criminal investigation law enforcement authorities may control and collect personal information passing through electronic communications networks for up to 9 months, if their actions are sanctioned by a district judge.[2] The judge must assess the need for the measure in question and balance it against the importance of protecting a person's private life – that is, to assess whether the measure in question would be proportionate. As such, the court acts as the primary control mechanism for interference with privacy. 

In essence, the procedure set out in the law complies with the standards prescribed by the European Convention on Human Rights (ECtHC) for the respect of the right to private life. [3] ECtHR judgments have made it clear that clandestine collection of data regarding a person's life may only be carried out under clear procedures, and also that it is important to have a supervision mechanism in place, such as national courts, to ensure that the measure is not abused.[4] 

The massive scale of the wiretapping of Baltic News Service journalists at the end of 2013 clearly demonstrated that the safeguards to privacy prescribed by law were not always applied in practice.[5] The court’s permission to wiretap 17 present and past employees of the news agency, as well as the belief that the decision was a simple one to make, revealed that judges take a very formalistic approach with regard to their duty to prevent human rights abuses.[6] 

It is particularly important that in this case, what was mandated was the surveillance of journalists, not just any ordinary people; journalistic correspondence is afforded special protection by the European Convention on Human Rights, as its origins lie not only with the right to privacy, but also with the freedom of the press.[7] After the journalists appealed the mandate to intercept their conversations to the Vilnius Regional Court, the decisions of the lower courts were deemed to be unfounded and quashed.[8]  

Despite the fact that in this case it was found that the law enforcement authorities unlawfully interfered with privacy, it still raises doubts regarding the effectiveness of the control exercised by the courts over the protection of human rights in this field. Available statistical data shows that these doubts are well-founded. 

In 2013, the prosecution submitted 14,526 requests to district courts for the collection of information transmitted through electronic communications networks. Out of these requests, 14,336 were granted in whole or in part. 12,332 requests were submitted in 2014, out of which 12,178 were granted.[9] Therefore nearly 99% of all law enforcement authority requests to allow the collection of information regarding personal correspondence were granted in 2013-2014. 

It follows, then, that the courts of first instance often only formally exercise their control function, without sufficiently ensuring that the right to respect for private life is really protected. There are very few appeals to higher courts regarding the collection of information transmitted through electronic communications networks. This is not surprising, since people usually find out about the surveillance after some time had passed and by then no longer see the point of appealing. Still, it is interesting to note that the higher courts allow many of these appeals: 18 out 24 appeals were allowed in 2013, with all 7 being allowed in 2014.[10] 

Findings and Recommendations 

  • In practice, the courts only exercise token control over law enforcement authorities and do not ensure that the right to private life is effectively protected from unfounded interference with correspondence, phone calls or other communications.
  • Since the surveillance of personal correspondence is mandated exceptionally often in spite of the strict regulation of this measure and the high standards prescribed by the ECtHR for the protection of human rights, it is recommended to organize training for judges and law enforcement officers and raise their qualifications, making them aware of human rights protection when interfering with privacy in criminal proceedings.

[1] The Constitution, 25 October 1992, Articles 22(2) and 22(3), http://www3.lrs.lt/home/Konstitucija/Konstitucija.htm

[2] Code of Criminal Procedure, 14 March 2002, No. IX-785, Article 154, http://www3.lrs.lt/pls/inter2/dokpaieska.showdoc_l?p_id=494011

[3] The European Convention on Human Rights and Fundamental Freedoms, 4 November 1950, Article 8, http://www.echr.coe.int/Documents/Convention_LIT.pdf

[4] Council of Europe, Europos Taryba, “The right to respect for private and family life. A guide to the implementation of Article 8 of the European Convention on Human Rights, 2001, p. 25-28, https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168007ff47

[5] "Mass Wiretapping of Journalists Echoes Across Europe", delfi.lt, 19 June 2014, http://www.delfi.lt/news/daily/lithuania/masinis-lietuvos-zurnalistu-pasiklausymas-nuaidejo-per-europa.d?id=65083971

[6] "Judge Mandating Mass Wiretapping of Journalists: I Would Do the Same Today", delfi.lt, 30 June 2014, http://www.delfi.lt/news/daily/lithuania/masiskai-zurnalistu-pokalbiu-klausytis-leidusi-teiseja-siandien-pasielgciau-lygiai-taip-pat.d?id=65151947

[7] ECtHR judgment in the case of Sanoma Uitgevers B. V. v The Netherlands, application No. 38224/03, delivered on 14 September 2010, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-100448

[8] "Court Says That the Wiretapping of Journalists Was Unfounded", delfi.lt, 18 August 2014, http://www.delfi.lt/news/daily/lithuania/teismas-zurnalistu-pokalbiu-klausytasi-be-pagrindo.d?id=65585038

[9] Information received from the National Courts Administation on 30 January 2015

[10] Information received from the National Courts Administation on 30 January 2015


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