Information Note on the Court’s case-law 188

August-September 2015

Sérvulo & Associados - Sociedade de Advogados, RL, and Others v. Portugal - 27013/10

Judgment 3.9.2015 [Section I]

Article 8

Article 8-1

Respect for correspondence

Large-scale seizure of computer files from lawyers’ office: no violation

In 2006 proceedings were instituted against several Portuguese and German nationals on charges of corruption, acquisition of prohibited interests and money laundering in connection with the purchase by the Portuguese Government of two submarines from a German consortium. The proceedings gave rise to two criminal investigations, the first relating to the actual purchase of the submarines and the second to the payments allegedly made by the German consortium to certain Portuguese companies. State agents were suspected of obtaining pecuniary advantages in the course of these negotiations, to the detriment of the State. Both investigations were conducted under the supervision of the investigating judge who, at the material time, was the only judge of the Central Criminal Investigation Court.

In September 2009 the investigating judge issued two search warrants concerning the business premises of the applicant firm. He stated that the search operations would be supervised by an investigating judge. Owing to another commitment he asked to be replaced on the day of the operations by two investigating judges of the Lisbon Criminal Investigation Court. The search warrants authorised access to all the offices of the applicant firm that had been occupied or used by the lawyers involved in the negotiations concerning the purchase of the submarines and the payments, and ordered:

– the seizure of any document, object or other item of evidence, especially in computerised form, connected to the crimes under investigation;

– the waiving of the requirement to protect the confidentiality of correspondence, stating that access to the computer files should be based on thirty-five keywords;

– the copying of the files covered by professional privilege in stand-alone digital form for submission to the investigating judge.

Lastly, the investigating judge requested that a representative of the Bar Association be present during the operations.

As the applicants lodged an objection against the search operation, the documents that had been seized were placed under seal, without being inspected, and sent to the President of the Court of Appeal. In October 2009 the Vice-President of the Court of Appeal ruled that the seizure of the documents and computer files had been proportionate to the aim pursued, namely the administration of justice in highly complex cases, and that there had been no breach of the constitutional principle of respect for privacy. He ordered the documents to be sealed and sent to the Central Criminal Investigation Court. In 2011 the proceedings were divided into two separate investigations. All the documents seized were returned, with the exception of two hard disks which were returned to the applicant firm on conclusion of the second investigation.

The first set of proceedings was discontinued, while in the second set of proceedings the accused were all acquitted.

In the Strasbourg proceedings the applicants complained about the searches carried out in their computer system and the seizure of computer files and emails.

Law – Article 8: The search and seizure operations in question constituted interference with the applicants’ right to respect for their correspondence. The interference was in accordance with the law and pursued the legitimate aim of preventing crime. As to whether it had been necessary in a democratic society, several points had to be considered:

(a) Whether the