| Applicant name | ŠKOBERNE |
| Applicant type | Natural person |
| Number of applicants | 1 |
| Country | SLOVENIA |
| Application no. | 19920/20 |
| Date | 15/02/2024 |
| Judges | Alena Poláčková, President, Marko Bošnjak, Lətif Hüseynov, Péter Paczolay, Ivana Jelić, Erik Wennerström, Raffaele Sabato |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | Violation |
| Reason | Quality of law |
| Type of privacy | Informational privacy |
| Keywords | Mass surveillance; quality of law |
| Facts of the case | The applicant complained that the retention of the telecommunications data relating to his telecommunication activities and its use in the proceedings against him had been in breach of Article 8 of the Convention |
| Analysis | There is a legal basis, but the quality of law is discussed under the necessity requirement The Court finds that the retention regime in question could be considered to have pursued the interests of national security, public safety or the economic well-being of the country, the prevention of disorder or crime, or the protection of the rights and freedoms of others. The accessing and processing of the telecommunications data relating to the applicant could be considered to have pursued the legitimate aims of preventing crime and protecting the rights and freedoms of others. The domestic law required the retention for a period of fourteen months of all communications data generated or processed during the provision of related public communications services. The law did not seem to leave any decision in this respect to the discretion of any State or non-State body and was not ambiguous as to its application. That the national law should, as part of the minimum requirements, in a manner suitable to the particular form of surveillance, define the scope of application of the measure in question and provide appropriate procedures for ordering and/or reviewing it with a view to keeping it within the bounds of what is necessary. The absence of provisions or mechanisms aimed at ensuring that the measure was actually limited to what was “necessary in a democratic society” rendered such a regime irreconcilable with the State’s obligations under Article 8. The mere limitation of the retention to fourteen months, which is a considerable period, cannot undermine this conclusion. ). In this connection, the Court considers that when the retention of telecommunications data is found to violate Article 8 because it does not respect the “quality of law” requirement and/or the principle of proportionality, access to such data – and its subsequent processing and storage by the authorities – could not, for the same reason, comply with Article 8. In this connection, reference may again be made to the view expressed by the CJEU. I |
| Other Article violation? | Yes, 6 ECHR |
| Damage awarded | a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 5,000 (five thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; |
| Documents | Judgment |