Published on 14 June 2021
THIRD SECTION
Applications nos. 1022/19 and 1125/19
Martin KOCK and Others against Germany
and JONES DAY against Germany
lodged on 20 December 2018 respectively
communicated on 28 May 2021
SUBJECT MATTER OF THE CASES
The applications were brought by three lawyers of the law firm Jones Day (application no. 1022/19) and by that law firm itself (application no. 1125/19). They concern the compatibility with Article 8 of the Convention of a search of the law firm and of the seizure of documents and electronic data.
The search was carried out on 15 March 2017 in investigation proceedings targeting the Audi stock corporation for fraud related to the use of unauthorised emissions control devices in diesel vehicles. It was aimed at the discovery of documents which the law firm had collected or created in the context of its internal investigations at the Audi stock corporation regarding the manipulation of emissions of diesel engines. The law firm had carried out these internal investigations at the request of its client, the Volkswagen stock corporation.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to respect for their private life and/or their home and/or their correspondence respectively, within the meaning of Article 8 § 1 of the Convention, by the search of the law firm and the seizure of documents and electronic data?
To what extent did the search and seizure in question affect an attorney‑client relationship, notably the attorney-client relationship between the law firm and the Volkswagen stock corporation concluded in the United States of America, or the attorney-client relationship between the law firm and any other client? Had the Audi stock corporation been included in the attorney-client relationship between the law firm and the Volkswagen stock corporation and thus been covered by the protection afforded to such relationships?
2. If so, was that interference in accordance with the law in terms of Article 8 § 2?
In particular, was the legal provision on which the search had been based (Article 103 of the Code of Criminal Procedure), taken together with the provisions laying down restrictions on investigative measures against lawyers (Articles 97 and 160a of the Code of Criminal Procedure), foreseeable in its application? Had the foreseeability of the law’s application been affected by diverging interpretations of different domestic courts?
3. Were the search of the law firm and the seizure of the documents and electronic data necessary in terms of Article 8 § 2?
(a) In that context, how far is the legal professional privilege and its scope relevant in the assessment of the proportionality of the search and seizure in the present case?
To what extent is it relevant that the applicants represented the Volkswagen company’s interests in proceedings against that company in the United States of America whereas, in the present case, the investigation proceedings in Germany leading to the search and seizure were targeting the Audi company?
(b) Were the search and the seizure proportionate to the aim pursued in the circumstances of the present case?
(c) Furthermore, having regard to the Court’s case-law in this respect (see, inter alia, Roemen and Schmit v. Luxembourg, no. 51772/99, §§ 68 et seq., ECHR 2003‑IV; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 57 et seq., ECHR 2007‑IV; and André and Another v. France, no. 18603/03, §§ 42 et seq., 24 July 2008), had there been particular safeguards accompanying the search of the law firm? In particular, had the scope of the search warrant been sufficiently precise and limited? Had an independent observer been present during the search in order to ensure that materials subject to professional secrecy would not be removed? If no such observer had attended the search, had there been a need for such an observer to be present?
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