Certain legal provisions in the Code of Criminal Procedure and in the Law on Criminal Intelligence empower public authorities to covertly monitor private places using video and audio techniques.
Video and audio monitoring in private places can be performed either in the form of:
Special investigative actions
During Special investigative actions, public authorities can apply video and audio monitoring in private places in the course of criminal proceedings if:
- there are reasonable grounds to believe that these recordings could contain needed evidence, and
- only if there are no alternative means for obtaining the evidence
These actions are carried out without the knowledge of the persons concerned and must be sanctioned by the investigative judge.
Operational actions
During Operational actions, video monitoring of a private place can be performed if:
- there is well-founded information about the particular persons’ connection to a grave crime, for example, to state security, or
- if a suspect or convicted person absconds, or a person goes missing
Video monitoring is performed without the knowledge of the persons concerned and must be sanctioned by the regional court judge.
What human rights violation may there be?
Video and audio monitoring carried out by public authorities constitutes an interference with your right to private life, namely, as it records your image and voice. Such permanent records reveal not only your identity but also the content of your conversations and activities that you have performed. However, only unlawful intrusion will result in a violation of your human right to private life.
Was the action carried out lawfully?
To evaluate whether an investigative or operational action against you was carried out lawfully and whether your privacy has been sufficiently respected, see the questions below. If, in your situation, your answer to one of these questions is negative, your privacy may have been violated. In such a case, you have the right to complain. Read more about how to complain.
The action should have a basis in law. In Lithuania, all investigative and operational actions are exhaustively listed either in the Code of Criminal Procedure or in the Law on Criminal Intelligence.
Both laws also contain:
- Certain requirements about the conditions under which these actions can be performed. Thus, a sanction from the investigative judge or the regional court is usually required for both investigative actions and the operational actions.
- The procedure for how to challenge the investigative or operational actions taken. You can learn more about the safeguards and how to complain.
If the video and/or audio monitoring is not allowed by law, this action is not lawful and your right to private life may have been violated. There is no need then to examine the other questions.
The video and audio monitoring has to be aimed at the protection of other legitimate interests. Usually these legitimate interests are:
- the prevention, detection and prosecution of crime
- the prevention of disorder and public safety
- the protection of other persons
- ensuring the security of the State against internal and external threats
If the measure taken does not serve a legitimate aim, the investigative or operational action is not lawful and your right to private life may be violated. There is no need then to examine the other criteria for lawfulness.
Video and audio monitoring should be necessary and suitable for the achievement of a legitimate aim. There have to be real factual indications for suspecting a person either of planning, committing or having committed certain serious criminal acts or otherwise threatening significant interests of the State. The reasons for the secret surveillance should not be general or exploratory.
The following questions should be asked to evaluate the necessity:
- Is the evidence collected relevant, not excessive and related to the achievement of the legitimate aim?
- Are there other alternative and less restrictive methods available to obtain the needed evidence?
- Would the establishment of the facts by another method be unsuccessful or considerably more difficult?
Both competing interests – your right to private life and the legitimate interests of the State or other persons – have to be balanced against each other and a fair balance must be found. Public authorities have to give sufficient arguments as to why the interests of others outweighed your rights and the other way around in the particular case. In doing so, the following questions should be assessed:
1) How intrusive was the nature of the investigative or operational activity in question?
The level of intrusion can be lower or higher depending on different facts. For example, the places in which the covert video cameras were located in your premises. The other competent authorities to which the data has been communicated, and under which conditions, should also be assessed.
2) For how long were the actions carried out?
Was it the maximum period allowed by law and, if so, have the authorities given sufficient arguments as to why the maximum period was necessary? Were the actions discontinued and then renewed? In such a case, the authorities should repeatedly evaluate the necessity of the renewal. Video and audio monitoring should be discontinued immediately once the conditions under which the investigative or operational action was allowed are no longer fulfilled or the action itself is no longer necessary for the achievement of the legitimate aim.
3) Is there sufficient protection provided against the possible abuse or misuse of the actions and the information obtained?
The implementation of the investigative or operational action should be reviewed by a competent body that is independent in its decision making from those authorities carrying out the activities. Lastly, the law has to provide an effective remedy for you to challenge the lawfulness of investigative and operational activities. You can read more about how to complain and protect yourself in such situations.
4) Were the recordings and/or transcripts of information destroyed as soon as they were no longer needed to achieve the legitimate aim?
The retention of such private information longer than is actually needed is not proportionate.
If the authorities have failed to properly balance your interests against those of others and, therefore, the interference is more serious than necessary, your right to private life may be violated.