Secret recording and video recording without a legal warrant for employee bribery. Violation of privacy. The fair trial was not infringed as the conviction was based on other evidence

JUDGMENT

Hambardzumyan v. Armenia 05.12.2019 (no.  43478/11)

see here

SUMMARY

The case concerned the applicant’s complaint that the police had not had a valid court warrant to
place her under secret surveillance during a criminal investigation.

The Court found in particular that the warrant had not been specific enough about the person who
was the object of the surveillance measure, vagueness which was unacceptable when it came to
such a serious interference with the right to respect for private and family life as secret surveillance.

Furthermore, the warrant had not listed the specific measures that were to be carried out against
the applicant. Overall, the surveillance measure had not had sufficient judicial supervision and had
been in conflict with the Convention.

PROVISIONS

Article 8

Article 6

PRINCIPAL FACTS 

The applicant, Karine Hambardzumyan, is an Armenian national who was born in 1956 and lived in
Yerevan prior to her detention. She was serving a sentence of imprisonment in Abovyan correctional
facility when her application was lodged.

While the applicant was working as the deputy head of the women’s unit of Abovyan correctional
facility, one of the prisoners reported to the head of the Department Against Organised Crime of the
Armenian Police that the applicant had demanded a bribe in return for a transfer to an open prison.

The authorities sought and obtained a court order to carry out secret surveillance. They provided the
prisoner with recording equipment to be used during a meeting with the applicant, intercepted their
telephone conversations and made a video-recording of the handover of the bribe money, which
was given in marked banknotes.

When the investigation was completed in May 2010, the applicant was given access to the case file
which was when she became aware of the secret surveillance.

During her trial, she argued unsuccessfully that the covert surveillance material should be excluded
as the court warrant had not been valid: it had been vague as it had not named her as the person to
be subjected to surveillance. The trial court convicted the applicant of taking bribes and of fraud and
sentenced her to nine years’ imprisonment, upheld on appeal in March 2011.

THE DECISION OF THE COURT…

Article 8

The Court rejected objections by the Government that the application was inadmissible for failure to
exhaust domestic remedies or because it had been lodged outside the six-month time-limit.

The Court was not convinced that the remedy suggested by the Government, of appealing against
the court order to authorise the secret surveillance after she had become aware of it, was an
available and sufficient remedy that could have afforded the applicant redress in respect of the
alleged breach of Article 8. It had therefore not been unreasonable for the applicant to have tried to
address that breach during the court proceedings in her case. Notably, the domestic courts had in
fact examined her Convention complaints, which primarily concerned the lawfulness of surveillance
measures. As she had subsequently lodged her application with the Court within six months of the
end of those proceedings, she had met the Convention time-limit.

On the merits of the case, the Court noted that the applicant’s complaint focussed on the fact that
the court warrant authorising the secret surveillance had not complied with domestic legislation.
She had stated that the warrant had not given her name as the target of the audio and
video-recording which the police had been permitted to carry out, while the Government had
countered that the intended target had been clear from the reasoning of the warrant.

The Court noted, however, that the court’s reasoning had reproduced the police’s wording in the
application for the warrant, which had stated that the prisoner’s actions had contained elements of
the crime of taking bribes. That had left room for speculation as to whether it was the prisoner or
the applicant or any other person who was the target of the surveillance, vagueness which was
unacceptable in a judicial authorisation for such a serious interference with respect for private life as
secret surveillance.

Furthermore, domestic law had an exhaustive list of the types of operative and intelligence
measures and required that court warrants had to indicate the specific activities that they
authorised. However, the list did not include an activity called “audio and video-recordings”. In the
applicant’s case it appeared that the police had carried out two distinct types of operative and
intelligence measure, external surveillance and the interception of telephone communications,
although the warrant had not specified those measures.

The Court concluded that the surveillance measure used against the applicant had not had proper
judicial supervision and had not been “in accordance with the law” within the meaning of Article 8 §
2 of the Convention. There had therefore been a violation of that provision.

Article 6

The applicant argued that she had not a fair trial because unlawfully obtained surveillance material
had been admitted in evidence against her and accepted by the courts. The Government argued that
the applicant had been able to challenge the use of the recordings in court and that they had not
been the only evidence against her.

The Court found that the applicant had had an effective possibility to challenge the authenticity of
the material and oppose its use. The trial court had dealt with that challenge only in vague terms but
the court of appeal had examined her arguments on the merits and had provided reasons for its
decision to uphold the trial court’s findings on that question.

The recordings had not been the only evidence used to convict her as the trial court had relied on
the prisoner’s statements, other witness statements as well as material and forensic evidence.
The Court thus found that the use of the secretly taped material had not conflicted with the
requirements of fairness guaranteed by Article 6 § 1 and there had been no violation of that Article.

Just satisfaction (Article 41)

The Court held that Armenia was to pay the applicant 1,200 euros (EUR) in respect of non-pecuniary
damage.


ECHRCaseLaw

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