Zoltán Varga v. Slovakia (Applications nos. 58361/12 and 2 others)

A selection of key paragraphs can be found below the judgement.

148. However, as already noted above, it is undisputed that the applicant was subjected to surveillance on the basis of the three warrants and that various material originating from the implementation of those warrants and concerning him was or still is retained by the SIS and the Regional Court. In view of the findings of the said domestic courts and the specific nature of measures of covert surveillance, which inherently makes it difficult if not impossible for the person concerned to establish the facts in any detail, the Court is prepared to accept that the implementation of the three warrants and the material resulting from it, at least in part, concerned the “private life” of the applicant.

149. The implementation of the three warrants and the production and retention of the various material resulting from it accordingly constituted an interference with the applicant’s right to respect for his private life.

162. In sum, in view of the lack of clarity of the applicable jurisdictional rules, the lack of procedures for the implementation of the existing rules and flaws in their application, when implementing the three warrants the SIS practically enjoyed a discretion amounting to unfettered power, not being accompanied by a measure of protection against arbitrary interference as required by the rule of law (see paragraph 151 above). Accordingly, it was not “in accordance with the law” for the purposes of Article 8 § 2 of the Convention.

169. In other words, the storing of both the primary material from the implementation of warrant 3 and the derivative material from the implementation of all three warrants under section 17(6) of the SIS Act was subject to confidential rules which were both adopted and applied by the SIS, with no element of external control. Such rules were clearly lacking in accessibility and provided the applicant with no protection against arbitrary interference with his right to respect for his private life.

170. In addition, in the absence of any argument by the Government to the contrary, the Court finds that, since the annulment of warrant 3 by the Constitutional Court, the retention by the SIS of the primary material from its implementation has as such been lacking sufficient basis in law.

171. The retention of the said material therefore has not been “in accordance with the law” within the meaning of the second paragraph of Article 8 of the Convention.

173. It follows from the foregoing that, on account of the implementation of the three warrants and the retention by the SIS of the primary material from the implementation of warrant 3 and of the derivative material from the implementation of all three warrants, there has been a violation of the applicant’s right under Article 8 of the Convention to respect for his private life.