In Case No. Up-899/16, Up-900/16, and Up-901/16 (Decision dated 5 May 2022, Official Gazette RS, No. 79/22), the Constitutional Court decided on the constitutional complaint of a complainant who claimed that in the criminal proceedings against him the courts used evidence that should have been excluded, as it was obtained without a court order and therefore in violation of his right to communication privacy determined by Article 37 of the Constitution. FBI agents and an undercover agent thereof allegedly, inter alia, communicated with the complainant by email, documented such communication, and forwarded the recordings to the authorities of the Republic of Slovenia, whereby all of this was allegedly carried out without a court order. In addition, the complainant alleged that his access to the evidence, which was mainly in electronic form, was restricted in terms of time and scope despite his numerous repeated motions to inspect the electronic part of the file. As a consequence, he was allegedly not guaranteed the right to prepare an adequate defence determined by Article 29 of the Constitution and he was placed in an extremely unequal position compared to the prosecutor. The courts adopted the position that, since the complainant publicly advertised his email address and published it on a publicly accessible website, he had no reasonable expectation of privacy for his subsequent communication by email, and, consequently, the performance of the measures at issue was not subject to the conditions determined by the second paragraph of Article 37 of the Constitution, which, inter alia, requires a court order for interferences with communication privacy.

The Constitutional Court confirmed the position of the courts that the complainant’s advertising of sales on the internet does not constitute private communication. However, as concerns his subsequent communication by e-mail, it decided differently. It emphasised that merely by making his or her email address public, an individual does not necessarily relinquish his or her reasonable expectation of the privacy of the contents of subsequent communication via the email address in question. The Constitutional Court held that, in the light of all of the circumstances of the case at issue, the complainant had a reasonable expectation of the privacy of his communication by email, and therefore the surveillance of the latter entailed an interference with his right to communication privacy.

The Constitutional Court then proceeded to review the criteria for the admissibility of evidence obtained abroad. It reiterated its established position that the investigative authorities that obtained the evidence in the United States of America on the basis of American legislation, and in the absence of any intervention or initiative by the Republic of Slovenia, could not be bound by the provisions of the Slovene Constitution, because the evidence was obtained abroad, outside the territorial jurisdiction of the Slovene Constitution. When evidence is obtained in such circumstances, the provisions of the Slovene Constitution cannot be violated. However, the Constitutional Court emphasised that this does not entail that human rights are not protected outside of Slovenia’s borders and that when evidence obtained abroad has been used it must be verified whether the courts observed the complainant’s fundamental procedural safeguards determined by Articles 22, 23, and 29 of the Constitution.

In this connection, the Constitutional Court held that the regular courts failed to provide the complainant with a substantive answer to the question of how substantive protection of human rights can be ensured in Slovene criminal proceedings, regarding which the Constitution explicitly requires a court order, if evidence is used despite the fact that it was obtained in the United States of America without a court order. This entails an important constitutional question concerning the use of evidence obtained abroad in accordance with lower procedural standards than those required in the Republic of Slovenia, and therefore, in accordance with the position of the Constitutional Court, the requirement to provide a clear, qualitative, and convincing reasoning determined by Article 22 of the Constitution is particularly accentuated. Since the courts failed to review the complainant’s allegations regarding the unconstitutionality of the use of the evidence obtained abroad on the merits, the Constitutional Court held that they failed to respond to the constitutionally relevant allegations regarding the violation of a human right. In doing so, they deprived the complainant of a reasoned court decision and consequently violated his right to the equal protection of rights determined by Article 22 of the Constitution.

With regard to the complainant’s allegation that his access to the evidence, which was mainly in electronic form, was restricted despite his numerous repeated motions to inspect the electronic part of the file, the Constitutional Court held that, due to the established restrictions in terms of the time and scope of his access to the case file during the proceedings, the complainant could not effectively dispute the allegations stated in the charge because he was not provided unlimited access to all the evidence in the case file or he was provided such only at a very late stage of the proceedings. The Constitutional Court therefore decided that by adopting the challenged standpoints regarding access to the case file, the courts violated the complainant’s right to adequate time and facilities to prepare his defence determined by the first indent of Article 29 of the Constitution. The Constitutional Court clarified that this decision cannot be altered by the fact that the complainant’s attorney was granted unlimited access to the case file, as the latter is merely the complainant’s assistant regarding legal questions, but he cannot substitute for the complainant as regards factual questions, particularly if these are very specific, as in the case of the computer crimes at issue.

As a result of the established violations of the right to communication privacy, the right to a reasoned judicial decision, and the legal safeguards in criminal proceedings, the Constitutional Court abrogated the challenged judgments and remanded the case to the court of first instance for new adjudication.