Violation of professional privacy of a lawyer – client through mobile phone data. Non-legislative provision for its protection. Violation of the right to respect of the correspondence
JUDGMENT
Saber v. Norway 17.12.2020 (app. no. 459/18)
SUMMARY
Protection of mobile phone data relating to professional secrecy between a lawyer and a client. Right of respect for correspondence.
Seizure and copying of the applicant ‘s mobile phone data for clarification of a criminal offense. In an investigation into an attempted murder of the applicant, the police confiscated his mobile phone and made a copy of his registered data to clarify the criminal case. The applicant insisted on separating the information which would be copied and included in the case file, as the telephone memory contained a large number of data and messages from his collaboration with his lawyers concerning other criminal cases covered by professional secrecy. The Supreme Court ruled in another ruling that the police were responsible for filtering the information, but due to a lack of clear legislation, the police refused to do so.
The Court found that the seizure of the mobile phone and the copying of data from it constituted a very clear interference with the right to correspondence and pointed out that in a state governed by the rule of law, national law must be sufficiently clear on how such interference is required.
In addition, the Court has recognized the importance of specific procedural safeguards regarding the protection of professional secrecy between lawyers and clients, which covers the full range of professional client-lawyer cooperation. The ECtHR extended the protection of the professional secrecy of a lawyer with a client not only in court (civil and criminal cases) but also in consulting law.
In the present case, the ECtHR found the lack of an established framework for the protection of professional secrecy. It considered that the lack of predictability, due to the lack of clarity in the legal framework and the lack of procedural guarantees regarding the protection of professional secrecy, violated the right to respect for correspondence (Article 8 of the ECHR).
PROVISION
Article 8
PRINCIPAL FACTS
The applicant, Mohammed Imran Saber, is a Norwegian national who was born in 1978 and lives in
Oslo.
The case concerned lawyer-client privilege and a legal dispute over the applicant’s smart phone
being searched by the police.
The applicant’s smart phone was seized by the police on 23 November 2015 in the context of a
criminal investigation against two people for conspiracy to murder him. The police wished to search
the phone in order to shed light on possible conflicts between the suspects and the applicant.
The applicant stated that his phone contained email and SMS correspondence with two lawyers
defending him in another criminal case, in which he was a suspect (proceedings which ended with
his acquittal in 2019). The police and the applicant agreed that the data copied from his phone first
had to be sifted out by the courts and any data protected by legal professional privilege removed
before the police could carry out their search.
The Oslo City Court proceeded to have the filtering carried out, amid disagreement as to how the
court could go about it in practical terms, including whether it could seek assistance from the police.
However, the City Court then abandoned the filtering procedure because the Supreme Court had in
the meantime given a decision – unrelated to the applicant’s case – indicating that it should in fact
be the police which filtered such data.
All his subsequent appeals, ultimately before the Supreme Court in June 2017, were in vain.
The copy of the applicant’s phone data was returned to the police for the search and the police
issued in that context a report on 9 November 2017.
The applicant complained that the proceedings in respect of search and seizure of data from his
smart phone, facilitating access to correspondence between him and his lawyers, had breached his
rights in particular under Article 8 (right to respect for correspondence) of the European Convention.
THE DECISION OF THE COURT…
The Court observes at the outset that it is undisputed between the parties that the search of the applicant’s smart phone and/or the mirror image copy of it, entailed an interference with his right to respect for his correspondence under the first paragraph of Article 8 of the Convention, and considers that this cannot be called into question.
In that context, the Court reiterates that Article 8 § 2 of the Convention requires the law in question to be “compatible with the rule of law”. In the context of searches and seizures, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances and conditions under which public authorities are empowered to resort to any such measures. Moreover, search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise.
Furthermore, the Court has acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyers and their clients and of LPP. Τhe Court has emphasised that professional secrecy is the basis of the relationship of trust existing between a lawyer and his client and that the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer’s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged”. Moreover, the Court has stressed that it is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion and that it is for that reason that the lawyer-client relationship is, in principle, privileged. It has not limited that consideration to matters relating to pending litigation only and has emphasised that, whether in the context of assistance for civil or criminal litigation or in the context of seeking general legal advice, individuals who consult a lawyer can reasonably expect that their communication is private and confidential
Proceeding to the circumstances of the instant case, the Court first of all observes that there was agreement that the mirror image copy of the applicant’s smart phone contained correspondence between him and his lawyers . It also observes that the Code of Criminal Procedure did not include any express provisions originally designed to prescribe the procedure for such situations in which LPP could be at stake. There was however initial common ground between the police and the applicant that in order to ensure that LPP was not compromised, the data on the mirror image copy had to be sifted out by the City Court and any LPP data removed before the police could search the remainder
Thereupon, while the City Court was proceeding to sift out the LPP data in the applicant’s case, the Supreme Court gave a decision in an entirely unrelated case in which the applicant had played no part, which indicated that it was – contrary to the assumptions of the applicant, the police and the City Court – in fact the police itself that should filter the data.
Having regard to the foregoing observations, the Court does not find it necessary in the instant case to consider whether or under what circumstances credible claims for LPP in respect of specific data carriers entail that they must be sent to a court or another third-party independent of the police and prosecution in order to have any data covered by LPP deleted. In the instant case it suffices for the Court to make the following observations.
Firstly, the Court takes note of the circumstance that the proceedings relating to the filtering of LPP in cases such as the present one lacked a clear basis in the Code of Criminal Procedure right from the outset, which rendered them liable to disputes such as that which followed the Supreme Court’s decision of 16 January 2017. Secondly, the actual form of the proceedings could hardly be foreseeable to the applicant – notwithstanding that he was allowed to object – given that they were effectively reorganised following that decision. Thirdly, and most importantly, the Court finds that the Government have not rebutted the applicant’s contention that subsequently to the Supreme Court’s finding in its decision of 16 January 2017 that the police should themselves examine the data carriers in cases such as the present one, the decision to apply that instruction to the applicant’s ongoing case, which became final with the Supreme Court’s decision of 30 June 2017, meant that no clear and specific procedural guarantees were in place to prevent LPP from being compromised by the search of the mirror image copy of his phone. The Supreme Court had not given any instructions as to how the police were to carry out the task of filtering LPP, apart from indicating that search words should be decided upon in consultation with counsel; even though the claim lodged for LPP in the instant case was as such undisputedly valid, the mirror image copy was effectively just returned to the police for examination without any practical procedural scheme in place for that purpose. As to the report of 9 November 2017, it described the deletion of data in the applicant’s case, but did not describe any clear basis or form for the procedure either.
In this context the Court emphasises that it has noted that the Government did indeed point to the procedural safeguards in place relating to searches and seizures in general; the Court’s concern is, however, the lack of an established framework for the protection of LPP in cases such as the present one. On that point, the Court observes in passing that the Supreme Court, in its decision of 16 January 2017 in fine, also pointed to the lack of provisions suited to situations where LPP data form part of batches of digitally stored data, and indicated that it would be natural to regulate the exact issue that arose in the instant case by way of formal provisions of law. The Court thus notes that the issue that arose in the instant case was not as such owing to the Supreme Court’s findings in that case, rather it originated in the lack of appropriate regulation as pointed out by that court.
Although no such regulation was in place in the applicant’s case, the Court has no basis to decide whether or not LPP was actually compromised in his case, nor has the applicant submitted that it was. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention. Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision.
In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention.
