Communicated on 18 December 2019
SECOND SECTION
Application no. 698/19
Viktor SÄRGAVA
against Estonia
lodged on 17 December 2018
SUBJECT MATTER OF THE CASE
The application concerns the seizure of a laptop and a mobile phone of the applicant, a lawyer, who is a suspect in a criminal case.
In response to the applicant’s request not to inspect the contents of the laptop and the mobile phone as they contained confidential information concerning his provision of legal services, the Police and Border Guard Board noted, inter alia, that the applicant had used the same laptop for the provision of legal services as well as for his other business activities. The contents of the laptop and the phone had been copied and would be examined for evidence by using keywords. Files that did not concern evidentiary information would not be opened and inspected.
The applicant’s further complaints were dismissed by the Office of the Prosecutor General (decision of the State Prosecutor of 26 April 2018 and decision of the Chief State Prosecutor of 4 June 2018) and subsequently by the Harju County Court (decision of 6 July 2018). In addition to what had been noted by the Police and Border Guard Board, the Office of the Prosecutor General argued that the requirement of inviolability of data carriers (andmekandjad) used for the provision of legal services, as laid down in the Bar Association Act, was not absolute. The Harju County Court agreed with that finding and added that in the case at hand the applicant was suspected of a crime. The Harju County Court considered that the applicant could submit an application to be present during the examination of the data carriers.
The applicant, relying on Article 8 of the Convention, primarily claimed that the seizure of his mobile phone and laptop was not in accordance with law. He referred that the confidentiality of the lawyer-client communication had to be maintained even if there was a legal basis for the search.
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QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life and/or correspondence and/or home within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference in accordance with the law (referring both to the existence of legal basis as well as to the quality of law) and necessary in terms of Article 8 § 2? In particular, were there adequate, effective and sufficient safeguards against abuse, arbitrariness and breaches of legal professional privilege? (See Robathin v. Austria, no. 30457/06, 3 July 2012; Iliya Stefanov v. Bulgaria, no. 65755/01, 22 May 2008; Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, ECHR 2007‑IV; and Sallinen and Others v. Finland, no. 50882/99, 27 September 2005).
The Government are requested to submit a copy of the application of the Office of the Prosecutor General for the search of the applicant’s home to be authorised and the corresponding decision of the Harju County Court authorising such a search, the relevant search report (läbiotsimisprotokoll) as well as the letter no. 3.2-1/5981-2, dated 21 March 2018, of the Police and Border Guard Board.
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