SALLINEN and OTHERS v. FINLAND

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50882/99
by Petri SALLINEN and Others
against Finland

The European Court of Human Rights (Fourth Section), sitting on 25 November 2003 as a Chamber composed of:

SirNicolas Bratza, President,
MrM. Pellonpää,
MrM. Fischbach,
MrJ. Casadevall,
MrS. Pavlovschi,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 2 September 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, listed in the Annex, are all Finnish nationals. The applicant listed at no. 7 died in the course of the proceedings before the Court. The applicants listed at nos. 6 and 8 are her children and have stated a wish to pursue her application as well.

The applicants are represented before the Court by Mr Markku Fredman, a lawyer practising in Helsinki. The respondent Government are represented by their Agent, Mr Arto Kosonen, Director in the Ministry for Foreign Affairs.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant is a member of the Finnish Bar, whereas the other applicants were his clients at the relevant time (“the client applicants”).

On 26 January 1999 the police conducted a search – it is not entirely clear of which premises – based on the suspicion that the first applicant’s clients X. and Y. (not client applicants before the Court) had committed aggravated debtor’s fraud. In the course of that search X. managed to destroy the original of a promissory note which the police had attempted to seize as it might have revealed the financial arrangements underlying the suspected offence.

At the time the first applicant’s status in the investigation had been that of a witness. On 22 February 1999 the police requested him to show up for questioning in this capacity. This request was apparently cancelled before he had taken any action thereon.

On 2 March 1999 seven officers of the National Bureau of Investigation (keskusrikospoliisi, centralkriminalpolisen), assisted by a tax inspector and an enforcement official (ulosottomies, utmätningsman), searched the first applicant’s law office, flat and vehicles. This search warrant was likewise based on the suspicion that X. and Y., had committed aggravated debtor’s fraud but the first applicant was now indicated as a suspect of having aided and abetted by drafting certain documents.

Under the terms of the warrant the search aimed at examining “the documents, computers and archives of the law office” as well as the first applicant’s flat and vehicles “so as to investigate the share transactions by the limited liability company [H.] in 1998 and to find material relating to those transactions”.

During the search of his law office all of the first applicant’s client files were allegedly perused. The police also examined all floppy disks and examined his note books pertaining to his meetings with clients. In addition, the hard disks in the office computers were copied: two were copied on the spot and two computers, including the one used by the first applicant himself, were seized for later disk-copying on police premises. Those computers were returned on 4 March 1999.

The first applicant’s computer also contained software for electronic mail, including his private and professional messages.

A fellow member of the Bar assisted the first applicant during part of the search.

On 4 March 1999 the first applicant requested the District Court (käräjäoikeus, tingsrätten) of Joensuu to revoke the seizure as being unlawful. On 24 March 1999 the court nevertheless maintained it, noting that the first applicant was being suspected of aiding and abetting aggravated debtor’s dishonesty.

On 11 May 1999 the Court of Appeal (hovioikeus, hovrätten) of Eastern Finland upheld the District Court’s decision and on 25 November 1999 the Supreme Court (korkein oikeus, högsta domstolen) refused the first applicant leave to appeal.

On 4 May 1999 the police certified having returned three of the four hard disks and having destroyed any copies thereof. It stated however that it would retain a copy of the fourth hard disk until the lawfulness of the seizure had been finally decided or until the material could be destroyed for any other reason.

In June 1999 three of the applicants (nos. 2-3 and 9) requested the District Court to revoke the seizure of the copy of the fourth hard disk (which contained material relating to their commissions) and to order the police to compensate their costs. They argued that the seizure had been unlawful from the outset. At any rate, the copy in question was of no relevance to the pre-trial investigation concerning X. and Y. 

In its rejoinder the National Bureau of Investigation referred to the Court of Appeal’s decision of 11 May 1999 in which the seizure had been found lawful. Moreover, the hard disks had only been subjected to a targeted search with the help of the names of the relevant companies and individuals. Only the potentially relevant client files in the law office had been perused. The search and seizure had thus not been of wholesale nature. The tax and enforcement officials who had witnessed the search had been – and remained – under a duty to keep secret any information thereby obtained.

On 17 June 1999 the District Court agreed with the three client applicants and ordered that the copy of the fourth hard disk be returned. It rejected, as not being based on law, the applicants’ claim for compensation in respect of their costs. The applicants appealed on this point, whereas the police appealed against the revocation order.

In its submissions to the Court of Appeal the National Bureau of Investigation listed the contents of the copied hard disk. For example, specific mention was made of what appears to have been the promissory note which the police had been looking for (and had found). The submissions indicated the debtor’s and the creditor’s names as well as the amount of the debt. The National Bureau of Investigation furthermore explained that the material on the relevant hard disk had been copied to a so-called optical disk which could in any case not be returned as it also contained internal police data. The submissions by the Bureau were apparently not ordered to be kept confidential.

On 27 January 2000 the Court of Appeal declined to examine the parties’ appeals, considering that the matter had been resolved res judicata in the first set of proceedings ending with the Supreme Court’s decision of 25 November 1999. The Supreme Court granted leave to appeal to the three client applicants in question.

On 3 March 2000 the public prosecutor charged, among others, X. and Y. with aggravated debtor’s dishonesty but decided to press no charges against the first applicant, having found no evidence of any crime.

On 20 April 2001 the Supreme Court ruled that although a final decision had already been rendered in respect of another appellant, it did not prevent the courts from examining similar appeals filed by other parties. The case was referred back to the Court of Appeal which, on 4 October 2001, revoked the District Court’s decision on the basis that the seizure had been lawful.

The three client applicants in question were again granted leave to appeal to the Supreme Court. On 18 October 2002 it revoked the seizure in so far as it pertained to information which those applicants had given to the first applicant.

The Supreme Court found it undisputed that the copied hard disk contained information relating to the three client applicants’ commissions to the first applicant. It had not even been argued that this information was not protected by counsel’s secrecy obligation under chapter 17, section 23 of the Code of Judicial Procedure. Nor did the information in question pertain to any suspicion that the first applicant or any one else had committed a crime.

The Supreme Court accepted that the police had been entitled by chapter 4, section 1 of the Coercive Measures Act (pakkokeinolaki, tvångsmedelslagen 450/1987) to seize the first applicant’s hard disk and make a copy thereof. Technical reasons and practical needs (the fact that the police had been obliged at the time of the search to copy the whole hard disk) did not however permit any deviation from the prohibition on seizure of privileged material. The police should therefore have returned the computer files immediately or have destroyed them. The appellants were awarded reasonable compensation for their costs and expenses.

On 11 November 2002 the Chief Enforcement Officer of Vantaa confirmed that the copies of the hard disks had been destroyed on that day.

On 26 August 2003 the Deputy Chancellor of Justice (valtioneuvoston apulaisoikeuskansleri, justitiekansleradjointen i statsrådet) issued his decision in response to a petition by the Finnish Bar Association concerning, inter alia, the alleged unlawfulness of the coercive measures against the first applicant. He found it established that the tax inspector and the enforcement official had attended the search in their respective capacity as a witness and expert. He nevertheless concluded, inter alia, that from the point of view of foreseeability of domestic law, as required by Article 8 of the Convention, the relationship between Coercive Measures Act (chapter 4, section 2, subsection 2), the Code of Judicial Procedure (chapter 17, section 23, subsection 1 (4)) and the Advocates Act (section 5 c) was somewhat unclear and permitted very diverging interpretations as to the extent to which privileged material could be search and seized. The Deputy Chancellor therefore requested the Ministry of Justice to consider whether there was a need to amend the relevant legislation.

B.  Relevant domestic law

1.General conditions for searches and seizures

Under the Coercive Measures Act (450/1987) the police may conduct a search inter alia if there is reason to suspect that an offence has been committed and provided the maximum sentence therefor exceeds six months’ imprisonment (Chapter 5, section 1). The search warrant is issued by the police itself. 

A search may also be conducted on the premises of a person other than the one who is under reasonable (todennäköinen, sannolik) suspicion of having committed an offence of the aforementioned nature, provided the offence was committed on those premises or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those premises would produce an object to be seized or other information pertaining to the offence (Chapter 5, section 2). In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings, that it may have been removed from someone by a criminal offence or that the court may order its forfeiture (Chapter 4, section 1).

A sealed letter or other private document which has been seized may only be opened by the head of investigation, by the prosecutor or by the court. In addition, only the investigators of the offence in question may examine such a document more closely. However, an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material, as directed by the head of investigation, by the prosecutor or by the court (Chapter 4, section 8).

Whenever possible, the officer in charge shall call a witness to attend the search. If deemed necessary, the officer may also seek the assistance of an expert or other person (Chapter 5, section 4, subsection 1).

The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information. The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search (Chapter 5, section 4, subsection 3).

According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be placed on record.

As regards other evidence, it is the respondent Government’s view that a police officer is under an obligation to respect the confidentiality requirement stipulated by section 17 of the Civil Servants Act (750/94; valtion virkamieslaki, statstjänstemannalagen).

Section 8 of the Pre-Trial Investigation Act (esitutkintalaki, förundersökningslagen 449/1987) stipulates that in an investigation no one’s rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily.

Chapter 7, section 1 a, of the Coercive Measures Act provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation, the degree of interference with the rights of the suspect or other persons subject to the measures as well as in light of any other pertinent circumstances.

According to Chapter 4, section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants.

2.Particular conditions in respect of privileged material

Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document.

Under Chapter 17, section 23, subsection 1 of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years’ imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused.

Under section 5 c (626/1995) of the Advocates Act (laki asianajajista, lagen om advokater) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this  confidentiality obligation shall be punishable in accordance with chapter 38, section 1 or 2, of the Penal Code (rikoslaki, strafflagen), unless the law provides for a more severe punishment on another count.

In their book “Pre-trial investigation and coercive measures” (Esitutkinta ja pakkokeinot, Helsinki, 2002) Klaus Helminen, Kari Lehtola and Pertti Virolainen, state (at  page 742) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition.

3.Remedies

Chapter 4, section 13, of the Coercive Measures Act provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal.

According to section 118, subsection 3 of the Constitution (perustuslaki, grundlagen 731/1999) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task shall have the right to request that the civil servant or other person in charge of a public task be sentenced to a punishment and that the public organisation, official or other person in charge of a public task be held liable for damages, as provided in more detail by an Act. This section is equivalent to section 93 of the repealed Constitution Act of Finland of 1918 (Suomen Hallitusmuoto, Regeringsform för Finland), as in force at the relevant time.

Until 31 December 1998, Chapter 24, section 2 of the Penal Code provided that if a search of premises was carried out by someone lacking the authority to do so, or if someone having such authority carried it out in an unlawful manner, he or she was to be sentenced to a fine or to imprisonment for a maximum of one year. According to Government Bill no. 6/1997, the provision was proposed to be repealed as “in cases where the above-mentioned act is committed by a public official in the performance of his or her official duties, Chapter 40, section 10 is applicable”.

Chapter 40, section 10, subsection 1 of the Penal Code provides that if a public official, when acting in his office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year.

Chapter 40, section 11 of the Penal Code provides that if a public official, when acting in his office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for a negligent violation of official duties to a warning or to a fine.

According to Chapter 1, section 14 of the Criminal Procedure Act (laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges.

Under the 1974 Damage Compensation Act (vahingonkorvauslaki, skadeståndslagen 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties (Chapters 3 and 4).

C.Council of Europe recommendation

Recommendation (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer provides, inter alia, as follows:

“Principle I - General principles on the freedom of exercise of the profession of lawyer

... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ”

COMPLAINTS

1.  The first applicant complains that the search and seizure of privileged material violated his right to respect for his private life and home as guaranteed by Article 8 of the Convention. Apart from documents relating to his clients’ commissions his private notes and electronic messages were also seized.

The client applicants complain that the search and seizure of privileged material violated their right to respect for their private and family life and correspondence as guaranteed by Article 8.

In so far as the seizure extended to material containing information in respect of which the first applicant was not allowed to testify, it was not in accordance with domestic law. In so far as the search sought to obtain such material for seizure, that interference was likewise in breach of domestic law.

The search was also in breach of domestic law in that a tax inspector was appointed as a witness to the search, although representing the adversary in one client applicant’s case. As a witness the inspector was in principle able to familiarise himself with all material in the law office of relevance to that case, even though domestic law restricted the right of the police to invite a complainant or his representative to attend a search

At any rate, the interference with the rights under Article 8 was not proportionate to the aim sought to be achieved. For example, the seized hard disks contained almost entirely material of no relevance to the investigation.

Moreover, whereas the letters which some of the client applicants had received from the first applicant while being detained on remand could only have been screened by prison officials in case of suspected abuse of correspondence, the seizure of the first applicant’s hard disks enabled the police to read those very letters. The police copied documents relating to at least one client applicant detained on remand.

Part of the seized material also contained – or related to – wills, divisions of matrimonial estates and estimates of possessions to be declared for inheritance tax purposes. Even a safe containing wills and other documents deposited with the first applicant had to be opened for the police.

The argument that the police has a duty of secrecy is untenable as one element in the notion of privileged material is that it should not become available to the police. At any rate, the police did not fully respect this obligation as it disclosed some of that material in its appeal to the Court of Appeal.

Finally, in Finland no provision is made for involving an appointed representative of the Bar in any search and seizure of material relating to a member’s practice.

2.  The applicants further complain under Article 13 of the Convention that they had no effective remedy against the interference other than the possibility of seeking a review of the lawfulness of the seizure. Even if the District Court did order the seizure to be revoked in response to such a request, that decision was overturned on appeal before the copied hard disk could be restored. Even assuming that the applicants had been successful in having that copy restored, the police had had ample time to peruse the documents thereon.

3.  The client applicants further complain that the search and perusal of privileged material relating to their respective commissions violated their right to a fair hearing and an effective defence, as guaranteed in Article 6 of the Convention and notably in § 3 (b) and (c). Some of the applicants had commissioned the first applicant to assist them in criminal proceedings in which the police investigation had been conducted by officers also participating in the search.

As the same fairness guarantees in principle also apply prior to the actual court proceedings as well as in other than criminal proceedings, the search and seizure also violated the rights under Article 6 of those client applicants who had not been charged already at that moment. A situation whereby public officials can study privileged material relating to cases not yet heard by the courts and other authorities waters down the guarantee of equality of arms between the parties.

For example, one of the client applicants was an entrepreneur whose company was in the process of being wound up. Through the seizure the tax authority – normally the creditor with the most significant sum to collect – was able to study privileged documents relating to the winding-up.

Two other clients had commissioned the first applicant to assist them in opposing measures which had either already been taken or were being prepared by the Enforcement Office.

THE LAW

A. Death of applicant no. 7

The Court notes that the applicant listed at no. 7 in the Annex died in the course of the proceedings before the Court. While the applicants listed at nos. 6 and 8 have requested that they be allowed to pursue her application in her stead, being the heirs of the deceased, the Court notes that they are also applicants in their own right. In these circumstances they do not have sufficient legal interest to pursue the present proceedings also on behalf of their mother.

It follows that in so far as the application has been lodged by applicant no. 7 it is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4.

B. The search and seizure

The first applicant has complained that the search and seizure of privileged material violated his right to respect for his private life and home as guaranteed by Article 8 of the Convention.

The client applicants have complained that the search and seizure of privileged material violated their right to respect for their private and family life and correspondence as guaranteed by Article 8.

Article 8 reads as follows:

“1.  Everyone has the right to respect for his private and family life, his home and 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 in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government consider at the outset that the second, third and ninth applicants cannot be considered fulfil the requirement of a “victim” within the meaning of Article 34 of the Convention as the Supreme Court in its ultimate judgment found in their favour and awarded them compensation for costs and expenses. The other applicants however failed to institute proceedings before the domestic courts in accordance with Chapter 4, section 13 of the Coercive Measures Act with a view to having the seizure revoked. Moreover, the police voluntarily rescinded the seizure of those applicants’ files after a fairly short time.

The Government further note that none of the applicants challenged the lawfulness of the search by bringing criminal proceedings, coupled with a claim for damages, against any public official or other person in charge of the allegedly unlawful search.

The application should therefore be declared inadmissible.

In the alternative, the Government consider that there has been no interference with the client applicants’ rights within the meaning of Article 8 as they have not sufficiently substantiated their allegation that the retained copy of the fourth hard disk contained material which was unrelated to the offence under investigation. Furthermore, even if the disk did contain any material irrelevant to the investigated offence, that material could not be used by the police.   

Were the Court to find that there was an interference with the right protected under Article 8, the Government note that the first applicant was suspected of aggravated debtor’s fraud and of aiding and abetting aggravated debtor’s dishonesty. As the maximum penalty for an aggravated debtor’s fraud is four years’ imprisonment the search and seizure were in accordance with the law.

The search and the seizure were carried out with a view to investigating a serious offence, which justified the interference with the privileged client-lawyer relationship. A lawyer suspected of a severe offence cannot be treated differently from other suspects. As regards the other applicants, the Government refer to section 34 of the Police Act, under which information concerning exclusively a person unrelated to the investigation shall be destroyed without delay, unless the material is needed for the investigation of the offence. The police often resort to the expertise of tax inspectors when investigating matters relating to accounting. Subject to the instructions given by the head of the investigation, such an expert or assistant may examine a sealed letter or other document. The impugned measures were therefore in accordance with law also in this respect.

The Government further opine that the interference pursued the  legitimate aim of preventing crime and protecting the rights and freedoms of others. The measures were proportionate to those aims, corresponded to a pressing social need and were accompanied by adequate and effective safeguards. It was necessary for the police to examine all of the material in the first applicant’s office in order to find out which part of it was relevant to the investigation of the offence. The hard disks were subjected to a targeted search and only the potentially relevant client files in the law office were perused. The reason for retaining a copy of the fourth hard disk was thoroughly explained and reviewed in the national proceedings, and was relevant and sufficient also for the purposes of Article 8 § 2. Moreover, police officers were under an obligation to respect confidentiality.

The applicants maintain that they have exhausted domestic remedies adequately. The arguments which the remaining applicants could have relied on for seeking a review of the seizure would have been no different from those already submitted by the second, the third and the ninth applicant. The Finnish courts were therefore properly called on to examine the justification of the seizure. Criminal proceedings against a public official cannot be considered an effective legal safeguard against revealing confidential information in the process of a search.

As for the substance of their grievance the applicants contest the Government’s description of domestic law. Different conditions and procedures apply in respect of a search and a seizure. Applicants nos. 1-3 and 9 were the victims of a violation of Article 8 in respect of both measures, including the retention by the police of a copy of the fourth hard disk. The other applicants’ rights were violated only during the search and the short-term seizure which the police revoked of its own motion. The court review requested by three of the applicants concerned only the lawfulness of the seizure. There is no provision in Finnish law allowing for a review of a search.

The applicants do not base their complaint on the possibility that the police might have used the information obtained through the search. Nevertheless, simply their uncertainty in this respect must be taken into account in assessing the compatibility of the search with the requirements of Article 8.

In Finland the Convention is directly applicable domestic law and Chapter 2, section 2 of the Coercive Measures Act obligates the police to show circumspection when conducting a seizure. Since a search may only be performed to find potentially admissible evidence the police are not authorised by law to conduct a search if the purpose is to find a document which is arguably of a privileged character.

The tax authority is the complainant in criminal proceedings for tax fraud and debtor’s offences. In recovery proceedings, the enforcement official acts as the debtor’s adversary. In these circumstances the assistance which the tax inspector and enforcement official provided during the search raises a further question under Article 8.

The applicants conclude that Finnish practice in coercive measures is very deficient in terms of oversight and legal safeguards. In the absence of a system with investigating judges the police enjoy too independent and unsupervised a right to carry out a variety of coercive measures. In the present case the authorities did not adhere to the procedure recommended in the legal literature. The Board of the Finnish Bar Association can, for example at the request of the police, order the inspection of a law office to find a certain document. A member of the Bar whom the Board has appointed then performs the examination with an obligation to maintain secrecy.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 

C.Alleged unfairness of proceedings

The client applicants have further complained that the search and perusal of privileged material relating to their respective commissions violated their right to a fair hearing and an effective defence, as guaranteed in Article 6 of the Convention and notably in § 3 (b) and (c).

Article 6 reads, in so far as relevant, as follows:

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(b)  to have adequate time and facilities for the preparation of his defence;

(c)  to defend himself in person or through legal assistance of his own choosing ...”

The Government accept that in theory where a lawyer is involved in a search, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6. In the present case however it was necessary for the police to examine all of the material in the first applicant’s office in order to identify those of relevance to the investigation. Only those documents were examined more closely and under domestic law no other material was to be entered into the   investigation record.  The police officers were – and remain – under an obligation to respect confidentiality. Moreover, officials who obtain information in the context of a seizure are not allowed to use that information for purposes other than a criminal investigation.

The Government consider unsubstantiated the applicants’ allegation that information gleaned from the seized material was being used against the applicants in other proceedings.

The applicants maintain their view that Article 6 was violated through the wholesale character of the coercive measures which were conducted without resorting to the assistance of an independent counsel appointed by the Bar Association, as recommended in legal literature.

The Court considers, in the light of the parties’ submissions, that this complaint also raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. 

D. Alleged lack of an effective remedy

The applicants have further complained under Article 13 of the Convention that they had no effective remedy against the search other than the request for a review of the lawfulness of the seizure.

Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The Government considers that it is not necessary for the Court to rule on Article 13. In any case, there is no violation of Article 13 since the applicants had several domestic remedies at their disposal, some of which they have also used.

The Government reiterate that according to section 118 of the Constitution, everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public task may bring charges against a civil servant or other person in charge of a public task and also claim damages. Moreover, the Tort Liability Act also entitles an individual to institute proceedings against investigative authorities or against a court of law, before a district court, on the ground that he or she has suffered damage due to the performance of a public task.

Finally, anyone affected by a seizure may challenge its lawfulness before a court of law under Chapter 4 section 13 of the Coercive Measures Act, as  was done by four of the applicants. One may also petition the Ombudsman or the Chancellor of Justice or the regional or supreme police command of the Ministry of the Interior.

As regards the destruction of property which has allegedly been seized unlawfully, including copies made of seized documents, the person affected by the seizure may request a court to issue a civil law order whereby the investigative authorities are placed under an obligation to destroy the said material.

The applicants contend that a separate issue arises under Article 13. As Finnish law stands today they see no effective remedy against the revelation of confidential information.

The Court considers, in the light of the parties’ submissions, that this complaint also raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging its merits, in so far as it has been lodged by applicants nos. 1-6 and 8-19;

Declares the remainder of the application inadmissible.

Michael O’BoyleNicolas Bratza
RegistrarPresident

ANNEX

The applicants are:

1.Mr. Petri Sallinen, born in 1968 and resident in Joensuu;

2.Ms. H., born in 1931 and resident in Joensuu;

3.Ms. M., born in 1962 and resident in Joensuu;

4. Mr. P.S., born in 1962 and resident at Onkamo;

5.Mr. J., born in 1967 and resident in Joensuu;

6.Mr. J.J., born in 1974 and resident at Lehmo;

7.Ms. I., born in 1951 and resident at Lehmo;

8. Ms. N., born in1976 and resident at Lehmo;

9.Mr. V., born in 1940 and resident at Suhmura;

10.Mr. L., born in 1945 and resident at Suhmura;

11.Mr. T., born in 1943 and resident in Joensuu;

12. Mr. K, born in 1964 and resident at Kylmäkoski;

13.Mr. T.A., born in 1968 and resident in Joensuu;

14.Ms. T.S., born in 1971 and resident in Joensuu;

15.Ms. S., born in 1942 and resident in Joensuu;

16.Mr. J.V., born in 1968 and resident in Joensuu;

17. Mr. A.H., born in 1952 and resident in Joensuu;

18.Ms. T.T., born in 1945 and resident in Joensuu; and

19.Mr. R., born in 1962 and resident at Lehmo.

Full & Egal Universal Law Academy