The re-seizure of business related items which were handed over to the applicant’s lawyer before the latter could communicate with him did not provide sufficient guarantees against arbitrariness.
JUDGMENT
Visy v. Slovakia 16.10.2018 (no. 70288/13)
SUMMARY
Investigation and confiscation of items without a legal warrant. The items were returned to the applicant’s lawyer and subsequently confiscated with a new warrant. The re-seizure of business objects, including legal documents protected by the client-client privacy relationship, which were returned to the lawyer rather than to the applicant, violated the right to privacy, residence and correspondence. The national authorities have failed to provide relevant and sufficient reasons for rejecting the complainant’s complaints. Insufficient guarantees against arbitrariness and abuse and violation of Article 8 of the ECHR.
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Stephan Visy, is an Austrian national who was born in 1964 and lives in Vienna. He is a
businessman associated with a major Austrian financial and industrial group.
The case concerned electronic storage media which had been seized from Mr Visy’s office in
Bratislava, returned to his lawyer three years later and then immediately re-seized.
The Slovakian prosecuting authorities originally seized the material in 2009 at the request of the
Austrian authorities who suspected Mr Visy of being involved in fraud, breach of confidence and
insider trading. In 2010 the Slovakian Constitutional Court found however that the warrant for the
search and seizure had not covered Mr Visy’s office. The seizure of any items had therefore been
unlawful and they had to be returned. In 2012, the items were returned to Mr Visy’s lawyer, but
were immediately seized again with reference to a fresh letter rogatory from the Austrian
prosecution service.
Mr Visy lodged a series of requests and complaints with the Slovakian prosecuting authorities,
without success. They rejected in particular his argument that he had not been able to confer with
his lawyer because the items had been returned and re-seized within such a short space of time,
finding that it had been his choice not to take part in person in the handover of the items.
The Constitutional Court dismissed a fresh complaint in 2013, finding that its review was limited to
issues of constitutionality as opposed to lawfulness.
Mr Visy alleged inter alia that the re-seizure in 2012 of his business-related information, including
legal advice protected by lawyer-client privilege, had breached his rights under in particular Article 8
(right to respect for private and family life, the home, and the correspondence) of the European
Convention.
THE DECISION OF THE COURT
Violation of Article 8
Article 8: It had not been disputed that the re-seized materials contained business-related information and included legal advice protected by lawyer-client privilege. The re-seizure had been based on a letter rogatory issued by the Austrian prosecution service. There was no indication that at any stage in Austria or in Slovakia had it been ordered, endorsed, supervised or reviewed by a court. In so far as the assessment of the applicant’s case by the PPS had been later reviewed by the Constitutional Court, the scope of its review had been limited in two respects. First, the Constitutional Court had not reviewed the re-seizure as such. Rather, it had reviewed the assessment of the re-seizure by the PPS. Second, as the Constitutional Court had specifically pointed out, its review had been limited to issues of constitutionality, as opposed to lawfulness.
The applicant had contended that since the seizure had taken place immediately after the items in question had been returned to his lawyer, he had been deprived of the opportunity to confer with him and, by extension, of the possibility of properly exercising his rights. The Court noted that the summons for the handover of the material to be returned to the applicant had been relevant solely to its restitution to him and bore no reference to any re-seizure that was in fact to follow. Thus, the authorities’ reasoning that it had been the applicant’s free choice not to take part in person in the handover of the items to be restored and that, consequently, he could not complain of not being able to exercise his rights properly in person could not be accepted on the facts since the applicant had had no knowledge that the items would be seized again and accordingly could not have had any choice as to whether to participate in person or not. The reasoning provided by the domestic authorities in that respect could not therefore be considered relevant and sufficient. Furthermore, the applicant’s argument that the media that had been seized again contained legal advice protected by lawyer-client privilege did not appear to have been addressed at all by the PPS or the Constitutional Court.
The Court noted that the re-seizure had been merely a preliminary measure with a view to making use of the re-seized items in the main proceedings in Austria and that, had those items actually been transmitted to the Austrian authorities, it might have been open to the applicant to assert his rights and interests before them as appropriate. However, the Convention was intended to guarantee rights and freedoms that were practical and effective as opposed to ones that were theoretical or illusory. Therefore, in relation to the re-seizure, Slovakia remained bound by Article 1 of the Convention to secure the applicant his rights under the rights and freedoms defined in the Convention and its Protocols.
As the domestic authorities had failed to provide relevant and sufficient reasons for dismissing the applicant’s complaints in relation to the re-seizure, in which respect he had not had the benefit of effective safeguards against arbitrariness and abuse, the re-seizure could not be seen as having been proportionate to the legitimate aim it pursued, and thus necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage(echrcaselaw.com editing).
