Information Note on the Court’s case-law 256
November 2021
Särgava v. Estonia - 698/19
Judgment 16.11.2021 [Section III]
Article 8
Article 8-1
Respect for correspondence
Lack of sufficient procedural safeguards to protect privileged data covered during the seizure and subsequent examination of a lawyer’s laptop and mobile telephone: violation
Facts – The laptop and mobile telephone of the applicant, a lawyer, were seized in his home and car and subsequently examined by the authorities within the framework of criminal proceedings.
Appeals by the applicant, to declare unlawful the seizure and not to use material copied from the carriers as evidence in the criminal proceedings, were unsuccessful.
The applicant, referring to legal professional privilege and the inviolability of data carriers related to the provision of legal services, complained that the seizure of his laptop and mobile telephone and their subsequent examination had violated his rights under Article 8 of the Convention.
Law – Article 8:
The seizure of the applicant’s data carriers and their subsequent examination had constituted an interference with his right to respect for his correspondence. The Court left open the question whether domestic law met the requirements of clarity and foreseeability since in any event if did not provide sufficient procedural safeguards to prevent arbitrary or disproportionate interference with legal professional privilege.
Domestic law did not seem to contain any specific procedure or safeguards to address the examination of electronic data carriers and prevent communication covered by legal professional privilege from being compromised. The search warrant had not provided for safeguarding possible privileged material protected by professional secrecy, Moreover, the decision of whether to conduct a keyword-based search (or use any other method of sifting) as well as the choice of relevant keywords (some notably broad in scope) had been left entirely up to the investigative authorities. Domestic law had not granted the applicant any right to be present during the keyword-based search and did not seem to contain any specific rules on the procedure to be followed in the event of an objection to a seizure or content examination with reference to lawyer-client confidentiality.
The Court had no basis on which to decide whether or not lawyer-client confidentiality had actually been compromised in the case at hand. However, the lack of procedural guarantees relating specifically to the protection of legal professional privilege already fell short of the requirements flowing from the criterion that the interference must be “in accordance with the law” within the meaning of Article 8 § 2.
Conclusion: violation (four votes to three).
Article 41: claim dismissed for non-pecuniary damage.
(See also Smirnov v. Russia, 71362/01, 7 June 2007, Legal summary; Wieser and Bicos Beteiligungen GmbH v. Austria, 74336/01, 16 October 2007, Legal summary; Robathin v. Austria, 30457/06, 3 July 2012, Legal summary; Vinci Construction and GTM Génie Civil et Services v. France, 63629/10 and 60567/10, 2 April 2015, Legal summary; Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, 27013/10, 3 September 2015, Legal summary)
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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