The Court protects lawyers from arbitrary investigations and seizures
Kruglov and others v. Russia 30.01.2020 (no. 11264/04 and 15 applications)
Investigations in law firms and homes. Protection of professional secrecy. Necessary institutional guarantees. The seizure of computers and hard drives violates the right to property.
The applicants are lawyers. In order to gather evidence for a criminal investigation, a search warrant was issued at their homes and offices. Computers and storage units were seized. The applicants complained of a breach of their right to privacy and property.
The Court observes that there must always be a reasonable relationship of proportionality between the measures used by the State and the objective pursued.
In the present appeals, the ECtHR found that only one of the 15 applicants was involved in a criminal offense and concluded that interfering with the applicants’ rights with home and office search did not meet a pressing social need nor commensurate with the legitimate aims pursued. Violation of the right to privacy (Article 8).
It also held that the maintenance of confiscated electronic data storage devices had no apparent justification where the products themselves were not the object, instrument or product of any criminal offense and therefore constituted a disproportionate interference with the right to peaceful enjoyment of the goods protected by Article 1. of the Additional Protocol to the ECHR. Violation of the right to property.
Article 1 of the First Additional Protocol
The applicants are 25 Russian nationals who were born between 1953 and 1985 and live in Samara,
Yekaterinburg, St Petersburg, Cheboksary, Nizhniy Novgorod, Moscow, Novosibirsk, Markovo,
Khabarovsk, Vladivostok, Orsk, Tomsk, Orenburg and Krasnodar (all in Russia)
The case concerned police searches of the homes and offices of the applicants, who were practising
lawyers or their clients.
The searches in the 16 applications were carried out on various dates between 2003 and 2016. All
but two of the searches were based on court warrants. In some of the searches the investigating
authorities seized items such as computers, hard drives or documents.
The applicants complained in particular that the searches of their homes or offices and the seizure of
electronic devices containing personal information or documents covered by professional legal
privilege violated Article 8 (right to respect for private and family life, the home, and the
Relying in particular on Article 1 of Protocol No. 1 (protection of property) to the European
Convention, the applicants in six applications complained about the seizure and continued retention
of their data-storage devices.
THE DECISION OF THE COURT…
The Court reiterates that any measure, if it is no different in its manner of execution and its practical effects from a search, amounts, regardless of its characterisation under domestic law, to interference with applicants’ rights under Article 8 of the Convention.
With the exception of two applications (application nos. 11264/04 (second search) and 73629/13), the searches were based on search warrants, and their stated aim was to uncover criminal evidence. It remains to be ascertained whether the impugned measures were “necessary in a democratic society”, in particular, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate .
Therefore, searches of lawyers’ homes or offices should be subject to especially strict scrutiny .To determine whether the measures were “necessary in a democratic society”, the Court has to ascertain whether effective safeguards against abuse or arbitrariness were available under domestic law and how those safeguards operated in the specific cases under examination.
Turning to the present cases, the Court observes that in only one of fifteen applications (application no. 11264/04) was the applicant advocate officially suspected of having committed a criminal offence – libel of a judge. In the other fourteen applications the applicants were lawyers who were not under criminal investigation.
The Court concludes that in the cases where a court search warrant was issued, the national courts did not carry out a balancing exercise or examine whether the interference with the applicants’ rights had answered a pressing social need and was proportionate to the legitimate aims pursued.
As for particular procedural safeguards available to the applicants during the searches or in their aftermath, the Court finds as follows.
Russian law at the material time did not provide for procedural safeguards to prevent interference with professional secrecy, such as, for example, a prohibition on removing documents covered by lawyer-client .
Even the existing safeguards, such as having recourse to legal assistance during a search, were unavailable to at least one applicant on the pretext that her lawyer had arrived at the scene belatedly when the search had already begun.
Having regard to the above, the Court finds that the searches in the present cases impinged on professional confidentiality to an extent that was disproportionate to the legitimate aim being pursued.
As regards the three applicants who were practising lawyers but not members of the Bar the Court further notes as follows. It is for States to determine who is authorised to practise law within their jurisdiction, and under what conditions. Furthermore, it is also for States to establish a system of particular safeguards of professional secrecy in the interests of proper administration of justice, given lawyers’ role as intermediaries between litigants and the courts . In Russia, irrespective of the area of law, legal advice, as well as representation in court proceedings, may be provided by advocates and by “other persons”, with few limitations. However, professional secrecy is protected only to the extent that advocates are involved, thus leaving exposed the relationships between clients and other kinds of legal advisers . The Court concedes that potential clients should be aware of the difference between the status of advocates and that of other legal advisers. Advocates enjoy additional privileges which correspond to the fact that their obligations towards clients are greater than those of other legal advisers . However, it would be incompatible with the rule of law to leave without any particular safeguards at all the entirety of relations between clients and legal advisers who, with few limitations, practise, professionally. Therefore, the Court also considers that the searches of the premises of those applicants who were practising lawyers but not members of the Bar were conducted without sufficient procedural safeguards against arbitrariness.
There has therefore been a violation of Article 8 of the Convention in respect of all the applicants. In the light of this finding, the Court considers that it is not necessary to examine whether, in these cases, there has also been a violation of Article 13.
The Court reiterates that retention of material evidence may be necessary in the interests of proper administration of justice, which is a “legitimate aim” in the “general interest” of the community. It observes, however, that there must also be a reasonable relation of proportionality between the means employed and the aim sought to be realised by any measures applied by the State, including measures designed to control the use of the individual’s property. The Court has previously found that continued retention of seized data-storage electronic devices had no apparent justification where the devices themselves were not an object, instrument or product of any criminal offence, and, thus, constituted a disproportionate interference with the right to peaceful enjoyment of possessions protected by Article 1 of Protocol No. 1 .
In the case of Ms Fast, the seized computer processing units were returned nine months later; Mr Levchenko received his possessions a year and three months after the search; while in three other cases the seized objects were never returned to the applicants. Even though the seized objects were returned to Ms Buraga a month later, the expert had assessed the computers within two days of the seizure, and the authorities did not explain why they had needed to keep the computer units for much longer.
Accordingly, the Court considers that there has been a violation of Article 1 of Protocol No. 1 in respect of the applicants in each of the six cases. In the light of this finding, the Court considers that it is not necessary to examine whether, in these cases, there has also been a violation of Article 13.