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Slovenia: Court ruling on police inquiry into child porn peer-to-peer network

Judges say Slovenian authorities breached human rights law by allowing police without a court order to find a distributer of child porn on a peer-to-peer web network.

In its 24 April judgement, judgment in the case of Benedik v. Slovenia (application no. 62357/14) the European Court of Human Rights held, by six votes to one, that there had been:

a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case was brought by Igor Benedik and concerned the Slovenian police’s failure to obtain a court order to access subscriber information associated with a dynamic IP address recorded by the Swiss law-enforcement authorities during their monitoring of users of a certain file-sharing network.

In 2006, police in Switzerland informed their counterparts in Slovenia about a dynamic IP address that was being used in a peer-to-peer file-sharing network, which included the sharing of child pornography pictures or videos.

In August 2006 the Slovenian police asked the local Internet service provider for information about the user who had been assigned that IP address, which the company handed over.

The police used a provision of the Criminal Procedure Act which allowed them to request information from an electronic communication provider about the user of a certain means of electronic communication whose details were not available in the relevant directory.

The police did not obtain a court order. In December of the same year the police got a court order to obtain information about that user’s traffic data.

Although the IP address at first identified Benedik’s father as the subscriber to the Internet service in question, it transpired that it was Bendik who used the service himself and had downloaded files with child pornography.

He was formally placed under investigation in November 2007. He denied committing any offence and told investigators that he did not know what was on the files. He was convicted in December 2008 of the offence of the display, manufacture, possession or distribution of child pornography.

In its decision, the European court found in particular that the legal provision used by the police to obtain the subscriber information associated with the dynamic IP address had not met the Convention standard of being “in accordance with the law”.

The provision had lacked clarity, offered virtually no protection from arbitrary interference, had no safeguards against abuse and no independent supervision of the police powers involved.

It stated that a finding of a violation of Benedik’s rights under the Convention was sufficient just satisfaction for any non-pecuniary damage.

 

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