Procedural defects in a search of a lawyer’s office: violation of the right to respect for one’s home
Leotsakos v. Greece 4.10.2018 (no. 30958/13)
The case concerned a search of the professional premises of a lawyer (Mr Leotsakos) and the seizure of several items and documents in the framework of a criminal investigation concerning him personally.
The Court found in particular that the procedural defects were such that the search and seizure carried out in Mr Leotsakos’ law office could not be regarded as reasonably proportionate to the pursuit of the legitimate aims (the prevention of crime) in view of the interest of a democratic society in ensuring respect for one’s home. Among other shortcomings, Mr Leotsakos had not been present at any time during the search, which lasted for 12 days, and the authorities had confiscated computers and hundreds of documents, including client files covered by professional secrecy. The presence of a neighbour as an independent witness had not been a sufficient safeguard because she
had no legal knowledge and was incapable of identifying documents which concerned clients’ cases.
The applicant, Petros Leotsakos, is a Greek national who was born in 1951 and lives in Athens. He
has been practising as a lawyer in Greece since 1976.
In July 2010 the prosecutor’s office at the Athens Court of Appeal ordered a search of Mr Leotsakos’
professional premises in the framework of an investigation into a criminal organisation whose
members were suspected of involvement in such offences as money laundering and bribery of
judges. The search lasted 12 days and was conducted by a police officer accompanied by a deputy
prosecutor. A neighbour, who had no legal knowledge, acted as a witness during the search. The
authorities confiscated a computer and hundreds of documents, including client files relating to
judicial proceedings and tax-related documents. Twelve confiscation reports were drawn up, making
a total of 372 pages.
In May 2012 proceedings were brought against several individuals, including Mr Leotsakos. The
following month he applied to the Indictments Division of the Athens Court of Appeal seeking a
finding that the house search and seizure had been unlawful and that all confiscated items and
documents should be returned to him. He relied, inter alia, on the principle of protection of
professional secrecy. His application was declared ill-founded, and the public prosecutor at the Court
of Cassation refused to lodge an appeal against that decision.
THE DECISION OF THE COURT
Article 8 (right to respect for private and family life)
The Court pointed out that searches or inspections of the home or office of a lawyer lawfully practising his or her profession, principally as a member of the Bar, had to be accompanied by special procedural safeguards. In the present case Mr Leotsakos’ status as lawyer had been known to the authorities, and the search, resulting in the seizure of documents and computers belonging to him, had constituted an interference with his right to respect for his “home” and his “correspondence”. That interference had been in accordance with the law2 and pursued a legitimate aim: the prevention of crime.
As to whether the interference had been necessary in a democratic society, the Court noted that the public prosecutor’s search warrant had been drafted in general terms and that the Greek legislation did not provide for any prior scrutiny. Mr Leotsakos had not been present at any time during the search, which had lasted 12 days, and there was no evidence in the file to show whether the investigators had tried to inform him of their action, whereas under the Code of Criminal Procedure there was an obligation for the occupants of the premises to be present in the event of a search. In addition, the authorities had confiscated computers and hundreds of documents, including client
files. The presence of a neighbour as an independent witness was not a sufficient safeguard because she had no legal knowledge and was incapable of identifying documents which concerned the cases of clients that were covered by professional secrecy. Nor had there been any subsequent judicial review (ex post facto) and it had never been elucidated whether the computers and documents seized had a direct link with the offence being investigated. Moreover, the Indictments Division of the Court of Appeal, to which the case had been brought by the applicant, had not ruled on the manner in which the search warrant had been drafted or on the question whether the seizure of all
the documents and computers had been necessary for the investigation. Moreover, the entire collection of seized items had been retained by the authorities since the search and Mr Leotsakos still had no access to them. Lastly, a single person, the public prosecutor I.D., had conducted the preliminary investigation against Mr Leotsakos and had issued the search and seizure warrant against him. Subsequently, when Mr Leotsakos had disputed the lawfulness of those measures before the indictments division, the same prosecutor had been responsible for the case andhad made a proposal to the indictments division, which had endorsed it in few words by accepting all of the prosecutor’s submissions and without hearing representations from Mr Leotsakos, as this was not provided for in domestic law.
The Court thus found that the procedural defects were such that the search and seizure carried out in Mr Leotsakos’ law office could not be regarded as reasonably proportionate to the pursuit of the legitimate aims in view of the interest of a democratic society in ensuring respect for one’s home.
There had thus been a violation of Article 8 of the Convention.
Article 41 (just satisfaction)
The Court held that Greece was to pay the applicant 2,000 euros (EUR) for non-pecuniary damage and EUR 2,034 for costs and expenses(echrcaselaw.com editing).