CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 janvier 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s5FFF0A75 { margin-top:0pt; margin-bottom:0pt; font-size:7pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s25D5DE94 { margin-top:66pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .s1DE04B9 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:7pt } .sA36B60A1 { font-family:Arial; font-style:italic } .sA1D3DA2E { margin-top:0pt; margin-bottom:0pt; text-align:justify } Published on 29 January 2024   SECOND SECTION Application no. 27144/22 Linas SAMUOLIS against Lithuania lodged on 26 May 2022 communicated on 11 January 2024 SUBJECT MATTER OF THE CASE The application concerns the applicant’s complaint about a breach of his right to respect for his private life and lack of domestic remedies. The applicant is a business person and an investor. In 2002 and 2003, the law enforcement authorities applied criminal intelligence measures against another individual, the applicant’s interlocutor, and as a result intercepted the applicant’s telephone conversations. To the applicant’s knowledge, interception of his own telephone communications had never been authorised. In March 2004 a pre-trial investigation was opened against the other individual, and the applicant had been questioned as witness. The pre-trial investigation was eventually discontinued in 2009, the prosecutor having held that, having exhausted all procedural measures, no data proving that a crime had been committed had been gathered. The prosecutor ordered that the data containing the intercepted telephone conversations should remain in the criminal file. In 2016 the applicant was included on a list of witnesses in an investment arbitration dispute and in 2018 the Prosecutor General’s Office transferred the pre-trial investigation materials, including the applicant’s telephone conversations, to a law firm in Lithuania which was representing the Republic of Lithuania and the Vilnius City Municipality in Stockholm and Washington international arbitrations regarding investment-related disputes. Responding to the applicant’s complaint about breach of privacy, the prosecutors replied that although the pre-trial investigation had been discontinued a long time ago, the use of the materials gathered had been necessary in order to represent the State’s and the municipality’s interests and at the same time to protect public interest regarding the disputes in international arbitration. The applicant lodged several complaints with the prosecutors, asking that the pre-trial investigation materials be taken back from the third persons (the law firm in question) and that the information about the applicant’s private life be destroyed. The prosecutors dismissed the request. They held, firstly, that the applicant’s right to protection of his private life could be restricted because during the pre-trial investigation data had been gathered in order to investigate crimes. Secondly, it would be inappropriate to destroy the materials transferred to third parties (the law firm), given that the pre-trial investigation materials were relevant for the proceedings pending in international arbitration, and to destroy those materials would run against public interest. By a final and non-appealable ruling of 27   January 2022 the Vilnius City District Court refused to grant the applicant’s request, having upheld the prosecutors’ decisions as well-founded and reasoned. For the court, the right to privacy was not absolute. The court also held that the data gathered during the pre-trial investigations could be relevant for the cases pending in international arbitration and that the applicant therefore should be interested that the truth would be established by those institutions. Under Article 8 of the Convention the applicant complains about a breach of his right to respect for his private life and correspondence. He is dissatisfied that even though the pre-trial investigation had been discontinued years ago, the data gathered, containing private information about him, is being held without a time-limit and was even transferred to third persons. The applicant submits that such an interference lacks a proper legal basis, because the domestic legal provisions, concerning the authorities’ obligation to protect data obtained during secret surveillance, to destroy any private life-related data and to use such data for purposes other than criminal investigations only in certain circumstances, is applied in an arbitrary fashion and by granting the State authorities unfettered powers. The applicant considers that the State thus has failed in its positive obligation to protect his private life and correspondence. Under Article   13 of the Convention the applicant further complains that he has not had an effective remedy to defend his rights, because the prosecutors dismissed his complaints and the courts had not effectively examined the merits of his grievances.           QUESTIONS TO THE PARTIES 1.     Has there been a violation of the applicant’s right to respect for his private life or correspondence, contrary to Article   8 of the Convention (see, mutatis mutandis , Drakšas v. Lithuania , no.   36662/04, §§   54, 55 and 60, 31   July 2012)?   a)     In particular, has there been an interference with the applicant’s right to respect for his private life or correspondence, within the meaning of Article   8 §   1 of the Convention by the retention and transfer to third persons of the data gathered during the pre-trial investigations (see Roman Zakharov v. Russia [GC], no.   47143/06, §   173, ECHR 2015)?   b)     If so, was that interference in accordance with the law (see Amann v. Switzerland [GC], no.   27798/95, §§   55 and 56, ECHR 2000-II; Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria , no.   62540/00, §   76, 28 June 2007; and, mutatis mutandis , Bykov v. Russia [GC], no.   4378/02, §   78, 10   March 2009, and Karabeyoğlu v. Turkey , no.   30083/10, §   69, 7   June 2016) and necessary in terms of Article   8 §   2 (see Roman Zakharov , cited above, §   231; see also Big Brother Watch and Others v. the United Kingdom [GC], nos.   58170/13 and 2 others, §§   334 and 335, 25   May 2021)?   2.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article   8, as required by Article   13 of the Convention (see Drakšas , cited above, §   68; see also, mutatis mutandis , Klass and Others v. Germany , 6   September 1978, §   65, Series A no.   28)?