Key facts of the case:
The applicants were found guilty of insurance fraud as criminalised in § 212 para. 1 of the Penal Code. According to the facts as established by the courts, the applicants had staged a car crash. Some of the facts of the case were gathered through surveillance. The case had first gone through all three stages of the court procedure, and the Supreme Court had sent the case back to the Court of Appeals and indicated the correct interpretation of the § 212 of the Penal Code. The current appeal resulted from the new decision of the Court of Appeals. The applicants were of opinion that their right to fair trial had been violated as the Court of Appeals had not, during the second round of proceedings, followed the principles of fair trial and did not analyse the case on all sides but only formally and technically applied the interpretation provided by the Supreme Court. They especially contested the evidence found through surveillance and in this relation referred to the Directive 2006/24/EU and the decision of the ECJ from 8 April 2014 in case No. C-293/12.
Outcome of the case:
The appeal for cassation was dismissed.
Positions of the parties:
13. After the expiry of the term for lodging the cassation, the defence councils of R. Feodorovna submitted additional statements which refer to the judgment of the CJEU of 8 April 2014 in case No. C-293/12, where it was found that the Directive 2006/24/EU of the European Parliament and the Council from 15 March 2006 is invalid. The directive obliged the Member States to impose measures to preserve all of the data relating to the telephone network, mobile phone network, Internet access, e-mail and Internet telephony, in order to give the competent national law an opportunity to solve serious crime. The CJEU held that in imposing an obligation relating to such a wide circle of persons did not respect the principle of proportionality. In order to achieve the aims of the Directive, § 111 was appended to the Electronic Communications Act (ECA). It obligates the telephone and mobile telephone services and telephone and mobile phone network service providers, as well as Internet access, e-mail and Internet telephony service providers to keep and maintain, at their own expense, a list of statutory data, and provide it to the surveillance agency or security authority with information on the data stored. It also provides for their retention period, and the bases and procedure for the extension of the deadline. In the current case, the courts have relied, inter alia, on the reports of the surveillance activities, which contain data requested from the electronic communications undertaking in accordance with § 117 of the Code of Criminal Procedure (valid until 1 January 2013). As this violates the European Union's Charter of Fundamental Rights, the application of the Electronic Communications Act is precluded, and preservation of the data is illegal. It follows, that such evidence is inadmissible in criminal proceedings. Therefore, the defence councils ask the Court to declare this evidence inadmissible and disregard it from the collection of evidence.
20. In order to resolve the question of the admissibility of the evidence, the Supreme Court notes that according to the decision of the CJEU, such collection and preservation of data violates the persons the right to privacy and protection of personal data (the EU Charter of Fundamental Rights, Articles 7 and 8).
20.2 The Court concluded that the Directive does not provide clear and precise rules for limiting the rights that would govern the interpretation of Arts 7 and 8 of the EU Charter of Fundamental Rights of Articles 7 and 8, and would ensure that the infringement is limited to what is absolutely necessary.