Nemanja Popovic v Austria

Name of Case:Nemanja POPOVIC v. Austria
Court: European Court of Human Rights (“ECtHR”)
Application no:16530/23
Status: Open

In November 2024, Privacy International intervened in the case of Nemanja Popovic v. Austria in the European Court of Human Rights. The case concerns the interception of communications data by a non-Contracting State of the European Convention of Human Rights (“the Convention”), the cross-border sharing of the resultant information with a Contracting State, and its subsequent use in criminal proceedings.

The United States Federal Bureau of Investigations (“FBI”) decrypted and read messages exchanged via a messaging app, ANOM. They were able to do so as the app had been developed by the FBI, which distributed ANOM phones among criminal networks and touted them as a fully secure means of communication.

After obtaining the communications data of the Applicant, the FBI shared it with Austrian authorities. The communications data was used in criminal proceedings against the Applicant who was convicted of aggravated drug trafficking and money laundering, and sentenced to 7 years and 6 months in prison. The conviction was largely based on the intercepted communications data sent by the FBI.

During the criminal proceedings in Austria, the Applicant submitted that the courts should not admit the evidence obtained from the FBI on the basis that it was unlawful and inadmissible. This was on the basis that the Austrian Code of Criminal Procedure requires judicial authorisation in order to for communications data to be used in criminal proceedings. The request was denied on the grounds that these safeguards would only apply if the Austrian authorities had requested the information from the FBI or if they had directly entrapped the Applicant into committing an offence.

In his application to the ECtHR, the Applicant is arguing that:

• The proceedings and his conviction were unfair as the only evidence on which his conviction was based had been obtained unlawfully and in breach of Article 8 of the Convention;
• Surveillance measures without initial suspicion are not in accordance with the law, and that the surveillance measures and preservation of data were disproportionate; and
• He did not have any effective domestic remedies to complain against the impugned surveillance measures, contrary to Article 13 of the Convention.

Privacy International’s intervention focuses on:

• The impact of the interception of communications data on the right to privacy, including in the context of intelligence and law enforcement sharing;
• The privacy safeguards that should be implemented in the context of intelligence and law enforcement sharing;
• The impact on the right to fair trial through unlawful evidence arising from the failure to follow Article 8 safeguards; and
• The procedural and substantive safeguards necessary to prevent the violation of the right to a fair hearing where information to be admitted as evidence in criminal proceedings has been gathered in violation of the right to privacy.

Our full submission is attached.