The European Court of Justice ruled on Thursday 16 February that a decision authorising a phone tap does not have to contain individualised reasons (case C-349/21).
According to the Court, the obligation to state reasons is not violated when the decision is based on a detailed and in-depth request from the competent criminal authority and the reasons for the authorisation can be easily and unambiguously deduced from a cross-reference of the request and the authorisation.
In 2017, the President of the Specialised Criminal Court authorised the wiretapping of four people, who were later charged with participation in an organised criminal gang.
As the content of the recorded conversations is important for establishing the merits of the indictment, the tribunal has to review the legality of the procedure. Questioning whether the national practice of giving reasons for decisions authorising such tapping is compatible with the Directive on privacy and electronic communications read in the light of the EU Charter of Fundamental Rights, it referred the matter to the Court of Justice of the EU for a preliminary ruling.
In its judgment, the Court noted that, in the national practice at issue, the judge authorising the wiretapping adopted his decision on the basis of a reasoned and detailed application enabling him to verify whether the conditions for granting authorisation were met. According to the Commission, this practice is part of the legislative measures adopted by Bulgaria under the Directive.
It adds that by signing a pre-established text according to a model indicating that the legal requirements are met, the judge validated the grounds of the detailed request submitted to him by the competent criminal authority, while ensuring that these requirements are met.
The Court said that the obligation to state reasons in the Charter of Fundamental Rights requires that the person being tapped and the court hearing the case must be able to understand the reasons for the authorisation “easily and unambiguously”, which requires access to the authorisation decision and to the application of the authority that requested it.
See the judgment: https://aeur.eu/f/5di (Original version in French by Camille-Cerise Gessant)