Published on 25 July 2022
FIRST SECTION
Applications nos. 32078/17 and 42335/19
Giovanni DI NARDO and Angela MERCURIO against Italy
and Giovanni DI NARDO against Italy
lodged on 2 May 2017 and 23 July 2019 respectively
communicated on 7 July 2022
SUBJECT MATTER OF THE CASES
The applications concern tax investigating authorities’ access to the applicants’ banking record data regarding movements, transactions and any other disposition that could be related to the first applicant, G.D.N., or traced back to him. The first applicant is a practising lawyer and submits that access to his banking data involves access to information which is covered by his privileged relation with his clients and, therefore, circumvents his obligation of confidentiality regarding his clients’ names, proceedings, transactions, and other information. The second applicant in application no. 32078/17, A.M., is the first applicant’s wife.
The authorisation to obtain the said data directly from the banks was issued pursuant to Article 51 § 2 (7) of Presidential Decree no. 633 of 1972 and Article 32 § 1 (7) of Presidential Decree no. 600 of 1973. The applicants were not notified by tax authorities of the act authorising access to such data. They were subsequently summoned to provide the tax investigating authorities with clarifications concerning certain identified movements and transactions.
The applicants complain under Article 8 of the Convention that the impugned measure has interfered with their private life, it has not been proportionate, as it concerned information indiscriminately relating to all their banking transactions and movements and was not subject to an ex post facto judicial review. The first applicant also submits that the authorities collected and stored information related to his profession. In that regard, he argues that the tax authorities have interfered with the privileged relationship between him as a defence lawyer and his clients. Moreover, he maintains that in order to justify said movements and transactions, in the exercise of his right to defence in the tax assessment proceedings, he would be compelled to deliver documents and information concerning his professional activities and, therefore, to violate his duty of confidentiality.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private life (see Liebscher v. Austria, no. 5434/17, § 31, 6 April 2021; G.S.B. v. Switzerland, no. 28601/11, § 51, 22 December 2015) and, as for the first applicant, with his right to professional confidentiality (see Sommer v. Germany, no. 73607/13, § 48, 27 April 2017), within the meaning of Article 8 § 1 of the Convention, on account of the tax authorities’ access to, and record of, the applicants’ banking data? If so, was the interference in conformity with the requirements of Article 8 § 2 of the Convention? In particular:
(a) Was the interference “in accordance with the law” in terms of Article 8 § 2 of the Convention, that is to say, in accordance with a law which was accessible to the applicants, foreseeable in its application and consequences and compatible with the rule of law (see Breyer v. Germany, no. 50001/12, § 83, 30 January 2020, and Ben Faiza v. France, no. 31446/12, § 56 et seq., 8 February 2018). As regards the latter condition, did the said law provide some protection against the allegedly arbitrary interferences with the applicants’ Article 8 rights? In particular:
(i) Did it give the applicants and the authorities a sufficiently clear indication of the scope of discretion conferred on the competent authorities and the manner of its exercise (Saber v. Norway, no. 459/18, § 50, 17 December 2020) and did it provide special procedural guarantees concerning the protection of confidentiality concerning the lawyer’s relationship with his clients (Särgava v. Estonia, no. 698/19, § 88 et seq., 16 November 2021)?
(ii) Did it provide for an ex post facto judicial review of the lawfulness of, and justification for, the search of banking data and information, also with the aim of assessing whether information covered by the attorney-client privilege had been seized (Särgava, cited above, § 107, 16 November 2021, and Sommer, cited above, § 62)?
(b) Was the interference “necessary in a democratic society” and proportionate to the aim pursued, within the meaning of Article 8 § 2 of the Convention (M.N. and Others v. San Marino, no. 28005/12, § 76 et seq., 7 July 2015)? In particular, was the decision authorising the search and record of banking data sufficiently reasoned and specific in its content, in order to exclude an indiscriminate access to the applicant’s banking data (see Sommer, cited above, §§ 57 and 61)?
2. Has there been an interference, in terms of Article 8 of the Convention, with the first applicant’s right to professional confidentiality on account of the fact that he would be forced, in order to exercise his right to defence and justify the recorded movements and transactions, to deliver documents and information concerning his professional activity as a lawyer (see, mutatis mutandis. Michaud v. France, no. 12323/11, § 92, ECHR 2012)?
If so, was the interference in conformity with the requirements of Article 8 § 2 of the Convention? In particular, were there adequate, effective and sufficient safeguards against the alleged breaches of the legal professional privilege (Särgava, cited above, §§ 88 et seq.)?
3. Having regard to the circumstances of the cases, is the applicants’ situation indicative of an underlying systemic problem arising from the defective legal framework governing searches of banking data and information in the context of tax assessment proceedings, in particular in so far as data covered by the attorney-client privilege is concerned, which could call for indication of general measures under Article 46 of the Convention?