SECOND SECTION
DECISION
Application no. 30149/19
Amir Hussain MIRMOTAHARI
against Norway
The European Court of Human Rights (Second Section), sitting on 8 October 2019 as a Committee composed of:
Julia Laffranque, President,
Ivana Jelić,
Arnfinn Bårdsen, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 22 May 2019,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Amir Hussain Mirmotahari, is a Norwegian national, who was born in 1977 and lives in Sandvika. He was represented before the Court by Mr K. Ellertsen, a lawyer practising in Oslo.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 16 June 2016 the applicant, a lawyer at the time, was arrested on grounds relating to obstructing the course of justice, as the police asserted that he had attempted to organise the kidnapping of a victim of rape, in order to prevent her from giving evidence in a criminal trial. A search was carried out at his premises and a number of data carriers were collected. Without the police having examined their content, the data carriers were given to the Oslo City Court (tingrett) for that court to peruse the materials on them and sift out any information subject to legal professional privilege (LPP), before the police could search the remainder.
4. On 2 December 2016 the City Court decided to appoint a lawyer, H.F., knowledgeable on the subject of legal professional privilege and technically competent to assist in the sifting process. That lawyer regularly gave recommendations to the City Court before the latter took decisions on whether materials were subject to LPP or not. In agreement with the prosecution, the applicant’s defence counsel had concurrent access to all the materials and sat with mirror image copies of the data carriers. He was allowed to give comments before the City Court took its decisions. A number of decisions were made following this procedure.
5. At some point in time, the prosecution addressed the City Court and asked for it to revise the above practise by deciding that the applicant’s counsel should no longer play any role in the filtering process and no longer be given access to the materials in question. He should be ordered to return the mirror image copies of the data carriers. The prosecution submitted, inter alia, that the arrangement in the applicant’s case had run contrary to practice and assigned to the applicant’s defence counsel tasks with which he in that role should not have been entrusted pursuant to the Code of Criminal Procedure. It also stated that the arrangement had required extensive time and resources.
6. On 24 April 2018, upon having received the applicant’s submissions in response to the prosecution’s request, the City Court gave a decision in which it concluded that, since there was no longer agreement between the parties in respect of the adversarial procedure that had been followed, it had to be terminated, insofar as the applicant’s counsel could claim neither access to the complete materials nor to be regularly consulted by the City Court in the absence of such agreement.
7. On 16 May and 10 August 2018 the Borgarting High Court (lagmannsrett) and the Supreme Court (Høyesterett) respectively upheld the City Court’s decision. The Supreme Court stated, inter alia, that the City Court’s dealing with the materials in question entailed that an impartial and neutral instance decided what could be handed over to the police. This amounted, in the Supreme Court’s view, to fulfilling the requirements set out in the case-law from the European Court of Human Rights.
8. On 21 August 2018 the City Court made a new decision to give a further batch of materials from the data carriers to the police for the latter to search them. The decision was taken in line with advice from H.F. That was the first decision taken by the City Court without the above adversarial process having been followed and the applicant appealed against it on the ground that neither he nor his counsel had been consulted during the decision-making process. He maintained that the decision had not, therefore, been taken on the basis of sufficient information.
9. On 19 October 2018 the High Court dismissed the appeal, finding that the decision-making process had been adequate.
10. On 22 November 2018 the Supreme Court dismissed the applicant’s further appeal in a summary decision.
B. Relevant domestic law and practice
11. The rules in respect of searches and seizures in the context of criminal proceedings are provided in the 1981 Code of Criminal Procedure (straffeprosessloven). Particularly relevant to the instant case is Article 204 and the third paragraph of Article 205, which read:
Article 204
“Documents or any other items whose contents a witness may refuse to testify about under Articles 117 to 121 and 124 to 125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far as a duty to testify may be imposed in certain cases under the said provisions, a corresponding power to order a seizure shall apply.
The prohibition in the first paragraph does not apply to documents or any other items that contain confidences between persons who are suspected of being accomplices to the criminal act [in question]. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be given to the person entitled thereto.”
Article 205 (3)
“Documents or any other item in respect of which the possessor is not obliged to testify except by special court order may not be seized without a court order unless such a special order has already been made. If the police wish to submit documents to the court for a decision as to whether they may be seized, the said documents shall be sealed in a closed envelope in the presence of a representative of the possessor.”
12. On 3 March 2011 the Supreme Court made a decision concerning a search of the home and office of a lawyer suspected of having committed, inter alia, fraud together with clients. It stated that although the procedures relating to search and seizure of documents that were allegedly covered by legal professional privilege had not been solved expressly in the Code of Criminal Procedure, in practice Article 205 § 3 had been applied by analogy, in line with its decision of 14 October 1986. By way of this analogy, such documents should not be examined immediately by the police. Instead they should first be submitted to the City Court for that court to decide whether they may in principle be seized – following which they would be made available to the prosecution for search – or whether they would be exempt from seizure due to legal professional privilege – following which they would be returned to the lawyer without having been searched. Under the Code of Criminal Procedure, the primary competence to decide on seizures lay with the prosecuting authority; it was, accordingly, also for that authority to first search materials with respect to whether they could have evidentiary value. The court’s examination of legal professional privilege was in reality a step in the search process; only after the court’s initial filtering had been completed could the prosecution authority begin its proper searching of the material for evidence.
13. The Supreme Court added that the procedure would have to be somewhat different if the City Court found that a document fell within legal professional privilege, but the exception in Article 204 § 2 of the Code of Criminal Procedure – for documents that contain confidences between individuals who are suspected of being accomplices to the criminal act – could come into play (see paragraph 11 above). In these situations the City Court would also have to examine the relevance of the document as part of its examination of what should be made available to the prosecution. Lastly, the Supreme Court examined whether the application of the domestic procedural rules could result in breaches of Articles 6 or 8 of the Convention. It had already (in its decision of 1 February 2008, where reference had been made to Sallinen and Others v. Finland, no. 50882/99, 27 September 2005) been established that Article 8 applied to searches and seizures of a lawyer’s materials. As to the proportionality-test, the Supreme Court noted that the case before it concerned evidence in relation to a suspicion that a lawyer and a client had cooperated in serious financial crime. Even where the exception in Article 204 § 2 applied, it would not be a matter of making a complete exception from the duty of confidentiality, only from the rule that documents containing confidences between lawyers and clients could not be seized. It would be for the court to decide which documents were subject to legal professional privilege, and, where Article 204 § 2 applied, which documents were to be seized.
14. On 9 August 1996 the Supreme Court found that an individual affected by a decision to authorise a search was entitled under Article 377 of the Code of Criminal Procedure to appeal against that decision also after documents had been collected and brought to the City Court in accordance with the third paragraph of Article 205 (see paragraph 11 above).
COMPLAINT
15. The applicant complained under Article 8 of the Convention that the process leading to the Oslo City Court’s decision of 21 August 2018 to give certain materials to the prosecution for the latter to search for possible evidence against the applicant, had been inadequate with respect to ensuring that legal professional privilege was not compromised.
THE LAW
16. The applicant maintained that there had been a breach of Article 8 of the Convention because the decision-making process relating to the Oslo City Court’s decision of 21 August 2018 had not included obtaining information from the applicant, via his counsel, or any persons representing the interests of the applicant’s clients. The requirement of proper legal safeguards in the context of searches and seizures relating to lawyers had therefore not been met.
17. Article 8 of the Convention, in so far as relevant, reads as follows:
“1. Everyone has the right to respect for his ... his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime ...”
18. The Court considers that it cannot be called into question that the search and seizure-proceedings in question amounted to an “interference” with “correspondence” in the sense that those terms are used in Article 8 of the Convention. Moreover, it observes that the applicant has not contested that they pursued the legitimate aim of “prevention of disorder or crime” under the second paragraph of that provision. The Court sees no basis for considering these matters otherwise.
19. As to whether the impugned search and seizure-proceedings were “in accordance with the law”, the Court notes that they had a formal basis in law, namely the 1981 Code of Criminal Procedure (see paragraph 11 above). In light of the domestic case-law reiterated above (see paragraphs 12-14), the Court also considers that those rules were accessible and their interpretation and application foreseeable to the applicant. Accordingly, the question before the Court concerns the quality of the law, notably whether it ensured adequate protection of legal professional privilege.
20. In the context of Article 8 of the Convention, the Court has generally held that the fundamental rule of respect for lawyer-client confidentiality may only be derogated from in exceptional cases and on condition that adequate and sufficient safeguards against abuse are in place (see, for instance, M v. the Netherlands, no. 2156/10, § 88, ECHR 2017 (extracts)). It has also stated that searches and seizures represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise (see Sallinen and Others v. Finland, no. 50882/99, § 90, 27 September 2005). Moreover, while Article 8 protects the confidentiality of all “correspondence” between individuals, it affords strengthened protection to exchanges between lawyers and their clients (see Michaud v. France, no. 12323/11, § 118, ECHR 2012).
21. Proceeding to the law at issue in the instant case, the Court recalls that it has recently examined the relevant domestic legal provisions and case-law on search and seizure-procedures relating to lawyer’s premises in the respondent State, and their compatibility with the rule of law, in the case of Wolland v. Norway (no. 39731/12, 17 May 2018). It reiterates from its judgment in that case that under domestic law, searches normally involve specified court approval decisions amenable to appeal. Furthermore, there is a presumption under domestic law that searches of lawyers’ offices will involve materials subject to legal professional privilege. For that reason documents and data carriers encountered during searches of such premises are to be sealed away and given to the regional first instance court for it to sift the materials (see, also, paragraph 12 above). The courts’ decisions in that respect are amenable to appeal. Moreover, if the prosecution – upon having searched materials made accessible to it after the regional court has concluded that they contain no legally professionally privileged information – decides to seize any materials, its decision to seize may also be brought for review before the court (see Wolland, cited above, §§ 36-40 and §§ 66‑70).
22. In the case of Wolland, the Court considered that the above system included sufficient safeguards as concerned legal professional privilege (see Wolland, cited above, § 71). In the instant case, the City Court had initially, as part of its sifting process, also consulted the applicant’s counsel before taking each of its decisions on whether or not documents contained legally professionally privileged material. Furthermore, the materials in question could be accessed by the applicant’s counsel. The applicant’s argument is essentially that this practice, or another comparable arrangement, had to be continued for there to be sufficient safeguards in place.
23. The Court cannot see that the applicant has pointed out any circumstances concerning the concrete sealed materials in the specific case at hand that made it imperative to consult the applicant or a representative for him or his clients before the City Court made its decisions. The Court also notes that the applicant has made no allegations to the effect that the adversarial procedure that had initially been practised had to be continued for reasons relating to his own defence.
24. Having particular regard to the fact that the materials collected were effectively kept away from the police and prosecution and perused by an independent tribunal, notably the City Court, whose decisions on which materials should be freed for search were amenable to further judicial review by higher instances of court, the Court considers, as in the case of Wolland, cited above, that the domestic law contained sufficient safeguards in respect of preserving legal professional privilege. The internal processes carried out by the Oslo City Court in the instant case, including the assistance from lawyer H.F., appear adequate. In the circumstances, the Court does not find that not involving the applicant – or any representative for him or his clients specifically – as part of the filtering process case appears to have created any risk concerning disclosure of LPP-materials.
25. In the light of the above, the Court finds no indications of the impugned procedures not having been “in accordance with the law” under the second paragraph of Article 8 of the Convention.
26. The applicant has not submitted that the search and seizure-proceedings were not “necessary in a democratic society” and the Court sees no basis for holding otherwise.
27. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 7 November 2019.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Full & Egal Universal Law Academy