FIFTH SECTION
CASE OF MACHARIK v. THE CZECH REPUBLIC
(Application no. 51409/19)
 
JUDGMENT
 
Art 8 • Private life • Correspondence • Applicant’s criminal conviction based mainly on the content of her email communications with another convict, obtained by the police on the basis of a judicial order to transfer the content of all those messages from the mailbox of a third party to whom they had been forwarded • Judicial order issued despite domestic law not allowing communications service providers to store the content of such communications • Domestic courts’ failure to adequately address the applicant’s specific complaints with regard to the provider’s duty of confidentiality • Interpretation and application of domestic law lacked clarity and consistency and was not foreseeable • Interference not “in accordance with the law”
Art 6 § 1 (criminal) • Overall fairness of the applicant’s trial not irretrievably prejudiced by the admission of the impugned evidence which was decisive for her conviction • No indication the police acted in bad faith or in intentional breach of formal rules in obtaining and executing the judicial order • Evidence accurate and reliable, albeit obtained unlawfully • Applicant was able to effectively oppose the use of the evidence before four levels of jurisdiction • Defence rights duly respected
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
13 February 2025
 
FINAL
 
13/05/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Macharik v. the Czech Republic,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Mattias Guyomar, President,
 María Elósegui,
 Armen Harutyunyan,
 Stéphanie Mourou-Vikström,
 Diana Sârcu,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to:
the application (no. 51409/19) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Czech national, Ms Michaela Macharik (“the applicant”), on 24 September 2019;
the decision to give notice to the Czech Government (“the Government”) of the complaints concerning Articles 6 § 1 and 8 of the Convention;
the parties’ observations;
Having deliberated in private on 21 January 2025,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application concerns the applicant’s criminal conviction based mainly on the content of her email communications with another convict, which the police had obtained following a judicial order issued pursuant to a provision relating to data on telecommunications traffic, which, according to the applicant, provided no legal basis for the interference in question (Articles 6 § 1 and 8 of the Convention). THE FACTS
2. The applicant was born in 1979 and lives in Želešice. She was represented by Mr V. Kotek, a lawyer practising in Brno. 3. The Government were represented by their Agent, Mr P. Konůpka, of the Ministry of Justice. 4. The facts of the case may be summarised as follows. 5. On 14 November 2011 a judge of the Prague 3 District Court issued an order under Article 88a of the Code of Criminal Procedure (hereinafter “CCP”) enjoining a communications service provider to provide the police with all data on past telecommunications traffic passing through the mailbox of the P. company from the earliest possible date until 14 November 2011, including all available information about the registered user of that mailbox (registration data, IP addresses) and the contents of all messages contained therein. The order was issued at the request of a prosecutor, upon a proposal by the police, in a case of suspected tax evasion by M.P., as the authorised representative of the P. company, together with the representatives of roughly 40 other companies, some of whom remained unidentified. The order mentioned that the Constitutional Court’s judgment no. Pl. ÚS 24/10 (see paragraph 24 below) repealing section 97(3) of the Electronic Communications Act (Law no. 127/2005) was not an obstacle since all the requisite guarantees were met in the present case; namely, the order was aimed at obtaining information necessary to identify the perpetrators of an offence and to document their criminal activities, which were serious and punishable by a prison sentence ranging from five to ten years. 6. On 30 November 2011, the communications service provider provided the police with the available registration data and the contents of the mailbox, including messages written by the applicant which had been forwarded to M.P. by another suspect. The service provider observed that, in accordance with the Constitutional Court’s judgment no. Pl. ÚS 24/10, it did not store operational and location data, which could thus not be provided. 7. After inspecting the applicant’s messages, the police opened a criminal investigation into her activities. 8. On 16 August 2012 the applicant was charged with tax evasion for entering invoices for fictitious leases of advertising space in accounting records and filing a tax return based on those invoices. After the charges had been brought against her, the applicant unsuccessfully sought to have her email messages removed from the case file, arguing that the content of those messages could not be considered communications data within the meaning of Article 88a of the CCP. She further argued that communications service providers were not authorised to store the content of any messages; thus, the communications service provider should have refused to forward the content of her communications to the police. 9. On 24 June 2013 the applicant was indicted as an accomplice to tax evasion. 10. On 18 March 2015 the Prague Municipal Court (hereinafter also “the first-instance court”) found the applicant guilty as charged and sentenced her to two years’ imprisonment, suspended, and to the payment of a financial penalty of 50,000 Czech crowns (approximately 2,000 euros). According to the court, the applicant’s emails that had been forwarded to M.P. proved, in the light of their content and of the order of events, that the leasing agreements and the corresponding invoices had been backdated. The advertising could not have taken place as alleged by the defendants and as falsely stated in the documents. As to the lawfulness of the contested evidence (email communications), the court held that the relevant order should have been based on Article 88 of the CCP, which related to the content of communications (as opposed to Article 88a, which related to communications data). Nevertheless, this was considered merely a formal shortcoming, given that the order had been issued by a competent court and that all the conditions laid down in Article 88 had been met (criminal proceedings had been initiated against M.P. for a particularly serious offence that was punishable by five to ten years’ imprisonment and there were reasonable grounds to believe that the issuance of the order would lead to the disclosure of facts relevant to those criminal proceedings). 11. On 23 September 2016 the Prague High Court (hereinafter also “the appellate court”) dismissed an appeal by the applicant in which she argued that the evidence in question could not have been obtained under Article 88 of the CCP as held by the first-instance court, since that provision related solely to the interception and recording of future communications, the formal requirements for which had not been met. The High Court emphasised that, indeed, the main difference between Article 88 and Article 88a was that the former regulated the interception and recording of future communications, while the latter related to data on past telecommunications traffic. Therefore, the judge of the Prague 3 District Court had correctly relied on Article 88a of the CCP for the purpose of obtaining email communications made prior to the order. Lastly, the High Court noted that the order had been issued by a court of competent jurisdiction and had been duly reasoned. 12. On 28 March 2018 the Supreme Court dismissed as manifestly ill‑founded an appeal on points of law lodged by the applicant in which she argued that her email communications should not have been admitted as evidence because they had been unlawfully obtained under Article 88a of the CCP and that the content of those messages had been obtained unlawfully from the communications service provider. The Supreme Court held that the content of email communications could not have been obtained through the procedure provided for in Article 88, as an order based on that provision could only concern future – and not past – communications. Furthermore, a court order issued under Article 88a could only be used to obtain communications data, that is, operational and location data within the meaning of the Electronic Communications Act. The same followed from the decision of the Constitutional Court no. III. ÚS 3812/2012 of 3 October 2013, according to which data stored on tracked computers should be obtained under Article 158d of the CCP, relating to the surveillance of persons and objects. The Supreme Court further pointed out that, in accordance with Article 158b, the surveillance of persons and objects under Article 158d could be authorised in criminal proceedings for an intentional offence only where the aim pursued could not be achieved in any other way or would otherwise be considerably more difficult to achieve. Such surveillance was subject to prior authorisation by a judge if it was to interfere with the privacy of correspondence. However, Article 158d did not lay down any requirements as to the reasoning of orders issued under that provision, nor did it offer any guarantees as to the proportionality between the interference with privacy and the seriousness of the offence in question. On the other hand, Article 88a laid down conditions for issuing a court order and specified the range of offences for which it could be issued. It followed that the latter provision, which also ensured the proportionality between the interference with privacy and the seriousness of the offence in question, was a specific case of surveillance of persons within the meaning of Article 158d. The Supreme Court thus concluded that, since Article 88a imposed stricter requirements for the issuance of a court order than did Article 158d, and given the inconsistent practices at the time when the order challenged by the applicant had been issued, the evidence obtained through the procedure provided for in Article 88a could not be considered inadmissible. 13. In its decision no. III. ÚS 2374/18 of 27 March 2019, the Constitutional Court dismissed as manifestly ill-founded a constitutional appeal by the applicant in which she complained that the guilty verdict had been based solely on the content of her email correspondence, which had been provided to the police on an inappropriate legal basis. Referring to the Supreme Court’s decision, the Constitutional Court stated that, at the time when the order in question had been issued (that is, two years prior to its decision no. III. ÚS 3812/12), court practice had been inconsistent and both Articles 88a and 158d had been used to obtain the content of email communications. However, as the Supreme Court had rightly pointed out, while Article 158d did not offer any specific guarantees regarding the proportionality between the interference and the seriousness of the offence, Article 88a provided stricter conditions in this regard. Therefore, obtaining the content of email communications under Article 88a could not entail constitutionally unacceptable consequences. RELEVANT LEGAL FRAMEWORK AND PRACTICE
THE CODE OF CRIMINAL PROCEDURE AS IN FORCE AT THE RELEVANT TIME
14. Under Article 88 §§ 1 and 2, in the context of criminal proceedings for a particularly serious crime, the interception and recording of telecommunications traffic (odposlech a záznam telekomunikačního provozu) could be ordered if it could be reasonably assumed that it would disclose facts relevant to the criminal proceedings. Such an order was to be issued by the judge presiding the trial or, at the pre-trial stage, by a judge acting upon a proposal by a prosecutor. 15. Pursuant to Article 88a § 1, if data on past telecommunications traffic (údaje o uskutečněném telekomunikačním provozu) which were subject to telecommunications privacy or fell under the protection of personal data were necessary in order to clarify circumstances relevant to criminal proceedings, the presiding judge, or a judge at the pre-trial stage, would order persons or entities providing telecommunications services to disclose such data. The order had to be issued in writing and had to be reasoned. 16. In its amended version in force since 1 October 2012, Article 88a § 1 provided that, if it was necessary, for the purposes of criminal proceedings concerning an intentional offence punishable by up to three years’ imprisonment, to disclose data on telecommunications traffic which were subject to telecommunications privacy or which fell under the protection of personal data, and if the aim pursued could not be achieved in any other way or would otherwise be considerably more difficult to achieve, the presiding judge or, at the pre-trial stage, a judge acting upon a proposal by a prosecutor, would order the disclosure of such data. Such an order had to be issued in writing and had to be reasoned. 17. Under Article 158b §§ 1 and 2, the police were entitled, in the context of any criminal proceedings for an intentional offence, to use operative investigative means (operativně pátrací prostředky), including the surveillance of persons and objects (sledování osob a věcí). Operative investigative means could be used only if the aim sought could not be achieved in any other way or would otherwise be considerably more difficult to achieve. 18. Under Article 158d §§ 1, 3, 4, the surveillance of persons and objects consisted in the covert collection of information on persons and objects by technical or other means. If it was to interfere with the privacy of correspondence, surveillance was subject to prior authorisation by a judge. Such authorisation could be issued solely upon written request and had to specify the period over which the surveillance was to be conducted, which could not exceed six months. LAW NO. 127/2005 (“ELECTRONIC COMMUNICATIONS ACT”) AS IN FORCE UNTIL 11 APRIL 2011
19. Under section 90(1), operational data (provozní údaje) were any data processed for the purpose of transmitting a message through an electronic communications network or for billing purposes. 20. Under section 91(1), location data (lokalizační údaje) were any data processed in an electronic communications network which identified the geographical location of the terminal equipment of a user of a publicly available electronic communications service. 21. Pursuant to section 97(3), legal or natural persons providing a public communications network or a publicly available electronic communications service were obliged to store operational and location data generated or processed in the course of their activities for a period ranging from six to twelve months (after which such data had to be deleted), and, upon request, to provide them to the authorities authorised to request them; at the same time, the communications service providers were to ensure that the content of the communications was not stored. RELEVANT DOMESTIC CASE-LAWCase-law concerning the Code of Criminal Procedure

22. In its judgment no. Pl. ÚS 24/11 of 20 November 2011, the Plenary of the Constitutional Court declared Article 88a of the CCP unconstitutional, with effect from 1 October 2013, holding that the conditions for access to data on telecommunications traffic laid down by that provision were overly general, vague and therefore insufficient. The Constitutional Court emphasised, inter alia, that the contested provision had not offered any guarantees as to the proportionality between the interference with privacy and the seriousness of the offence. 23. In its decision no. III. ÚS 3812/12 of 3 October 2013, the Constitutional Court stated that the data stored on tracked computers (that is, not the data on telecommunications traffic) could be obtained on the basis of a court order issued under Article 158d of the CCP relating to the surveillance of persons and objects. Case-law concerning the Electronic Communications Act
24. In its judgment no. Pl. ÚS 24/10 of 22 March 2011, the Plenary of the Constitutional Court declared section 97(3) and (4) of the Electronic Communications Act unconstitutional and repealed it as of the date of publication of that judgment in the Collection of Laws (11 April 2011). It stated, in particular, that the general and preventive collection and retention of operational and location data amounted to significant interference with the right to privacy and should be limited to exceptional situations where the legitimate aim pursued could not be achieved by other means, provided that specific, detailed and effective safeguards against arbitrariness were in place, which the impugned provision did not offer at the material time. THE LAW
ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
25. The applicant complained that her email communications had been obtained without a proper legal basis, in breach of the guarantees of Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Admissibility
26. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions

27. As she had done before the domestic courts, the applicant focused her Article 8 complaint on the purported unlawfulness of the interference. She argued that, in order to obtain the content of her email messages, the domestic authorities had relied on Article 88a of the CCP, which only allowed communications data to be obtained, not the content of communications. While it was true that the Constitutional Court had later ruled that the content of communications could be obtained under Article 158d of the CCP (see paragraph 23 above), that procedure, which moreover lacked sufficient guarantees, concerned a different situation, namely, data stored on a tracked computer belonging to a person subject to surveillance. Moreover, it was not possible under any of those provisions, and in a situation where section 97(3) of the Electronic Communications Act had been repealed, to order the communications service provider to make the content of private communications available to the police, which was what had happened here. Thus, in the applicant’s view, the impugned order had relied on an inappropriate legal basis. 28. The Government acknowledged that there had been an interference with the applicant’s rights under Article 8 but considered it to have been lawful since both Articles 88a and 158d of the CCP pursued the same objectives and were used in practice to obtain the content of email communications. The applicant could therefore have foreseen that her right to privacy of correspondence might be interfered with in this way. The Government maintained that Article 88a of the CCP, on which the order had been based in the present case, offered more guarantees than Article 158d of the CCP; the applicant’s rights had thus enjoyed greater protection. While they conceded that the relevant practice had not been normalised until the decision of the Constitutional Court of 3 October 2013, the Government pointed out that it was natural that domestic case-law would evolve in response to the development of new technological means of communication. 29. They also emphasised that, in the present case, the interference had been proportionate to the nature of the criminal offence in question, the impugned order had been confined to a period that corresponded to the time when the offence had allegedly been committed and information had been gathered only to extent necessary for the investigation. Lastly, the Government observed that four levels of domestic courts had considered the applicant’s arguments, finding the impugned order lawful and giving sufficient reasons for their decisions.

Outcome for Article 41: violation