Information Note on the Court’s case-law No. 110
July 2008
André and Other v. France - 18603/03
Judgment 24.7.2008 [Section V]
Article 8
Article 8-1
Respect for home
Search of law offices and seizure of documents by tax inspectors seeking evidence against one of the firm’s corporate clients: violation
Facts: The offices of the applicants, who are lawyers, were searched by the tax authorities in the hope of discovering incriminating evidence against a client company of the lawyers which was suspected of tax evasion. The search was carried out by four Inland Revenue officers, in the presence of the first applicant, the President of the Bar Association and a police officer. At the time, the first applicant was given a copy of the warrant issued by the tribunal de grande instance authorising the search at the behest of the tax authorities. A report with an inventory of the items seized was drawn up and signed by those present. Sixty-six documents were seized, including hand-written notes and a document with a hand-written comment penned by the first applicant, which the President of the Bar Association expressly pointed out were personal documents of the lawyer’s and, as such, were absolutely confidential and could not be seized. The first applicant expressed reservations concerning the conduct of the search and made a number of observations, which were included in the search report. He was given copies of the search report and the documents seized. The applicants appealed, pleading professional privilege and the rights of the defence and arguing that documents handed over by a client to his lawyer and correspondence between them could not be seized if the purpose of the search was not to obtain evidence of the involvement of the lawyer in the offences concerned. They also objected to the lack of any express mention in the search warrant that the presence of the President of the Bar Association or his delegate was mandatory during the search. The Court of Cassation rejected the appeal.
Law: The search carried out at the applicants’ offices and the seizures effected amounted to an interference with their right to respect for their home. That interference was provided for by law and had pursued a legitimate aim, namely the prevention of disorder and crime. However, searches and seizures at a lawyer’s office indubitably interfered with the professional privilege at the heart of the relationship of confidence which existed between the lawyer and his client and was the corollary of the lawyer’s client’s right not to incriminate himself. That being so, if domestic law could provide for the possibility of such searches of lawyers’ premises, they should imperatively go hand in hand with special guarantees. In this case there had been a special procedural guarantee as the search had been carried out in the presence of the President of the Bar Association of which the applicants were members. His presence and his observations concerning the confidentiality of the documents seized had been mentioned in the subsequent report. However, not only had the judge who authorised the search been absent, but the presence of the President of the Bar Association and the objections he had voiced had not prevented the officers carrying out the search from looking at all the documents in the office and seizing them. On the matter of the seizure of notes hand-written by the first applicant, the papers concerned had been the lawyer’s personal documents, and therefore subject to professional privilege. Furthermore, the search warrant had been worded in very broad terms, simply ordering the searches and seizures necessary to produce the requisite evidence in certain places where documents and other sources of information relating to the presumed tax evasion were likely to be found, in particular at the applicants’ offices. This had given wide powers to the tax and police officers in charge of the search, the purpose of which had been to find, on the applicants’ premises, in their sole capacity as lawyers to the company suspected of tax evasion, documents capable of confirming the suspicion of tax evasion and being used in evidence against the company concerned. At no time had the applicants been accused or suspected of having committed an offence or been involved in any fraud committed by their client company. Thus, in the framework of the tax inspection of a corporate client of the applicants, the authorities had targeted the applicants solely because they were having difficulties completing the tax inspection, in the hope of finding accounting, legal or administrative documents that might confirm their suspicion that the company was guilty of tax evasion. In that context the search and seizures carried out at the applicants’ offices had been disproportionate to the aim pursued.
Conclusion: violation (unanimously).
Article 41 – EUR 5,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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