Acting on the orders of the US Attorney, an undercover FBI agent established contact with the perpetrator (complainant before the Constitutional Court), who had published an advertisement for the sale of malicious code (Mariposa botnet) in an online forum, together with his email address firstname.lastname@example.org. No court warrant had been obtained before the start of the communication through which the perpetrator’s identity was revealed and during which the malicious code was bought twice by the undercover agent.
The communication between the perpetrator and the FBI agent was then used as evidence in criminal proceedings in Slovenia, leading to a conviction and a prison sentence of 4 years and 10 months. The regular courts upheld the conviction, arguing that the gathering of evidence was in line with the US legislation and should therefore be admissible also in Slovenia. They also saw the publication of the email address as a waiver of the right to communication privacy.
The Constitutional Court, however, took a different view. Whereas it confirmed that the rules on evidence gathering in a foreign country need not be the same as in Slovenia for the evidence to be admissible in criminal proceedings, it stressed that the fundamental constitutional procedural guarantees of the accused should be respected. In its opinion, while it is true that the complainant, by publishing the email address, no longer had any reasonable expectation of privacy, this waiver only relates to the very email address but not also to the (contents of the) communication conducted through that email address. The fact that the communication was of a commercial nature is irrelevant, as the Slovenian Constitution does not differentiate between commercial and non-commercial communication. Under the Constitution, any invasion of the right to communication privacy mandates a prior court order.
According to the Constitutional Court, upholding the position of regular courts would mean the end of communication privacy with regard to any published means of communication, such as e-mail addresses and telephone numbers. Based on this reasoning, the Constitutional Court annulled the criminal conviction and ordered a retrial. In the new proceedings, the evidence from the US gathered by the FBI will clearly have to be excluded.
Article provided by INPLP member: Matija Jamnik (JK Group, Slovenia)
Dr. Tobias Höllwarth (Managing Director INPLP)