Communicated on 3 February 2016
FIFTH SECTION
Application no. 73607/13
Ulrich SOMMER
against Germany
lodged on 25 November 2013
STATEMENT OF FACTS
1. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
2. The applicant, Dr Ulrich Sommer, is a German national who was born in 1952 and lives in Cologne. He is a criminal defence lawyer.
3. In 2009 the applicant represented a client in criminal proceedings. After the completion of the proceedings, and when the client was already imprisoned, the client’s fiancée transferred the lawyer’s fees from her private bank account to the applicant’s professional account. The subject of the bank transfer read: Prof Dr Sommer fees (client’s last name).
4. Owing to a second investigation into the actions of the same client, the applicant received a second mandate from him. The investigation concerned suspicions of fraud on a commercial basis as a member of a gang in twenty-one cases. During these investigations, the bank accounts of the applicant’s client and the client’s fiancée were screened.
5. Based on the bank transfer of fees from the fiancée to the applicant, the Bochum public prosecution office also contacted the applicant’s bank. On 1 March 2011 the public prosecutor asked for a compilation of all transactions concerning the applicant’s bank account from 1 January 2009 until that day. He asked the bank not to reveal the request to the applicant. He based his request for information on Sections 161a, 51 and 70 in conjunction with Section 95 of the Code of Criminal Procedure (hereinafter the CCP) (see paragraphs 18-20).
6. On 1 April 2011 the public prosecutor requested further information and asked the following questions:
(a) Which other bank accounts, investment accounts or safe deposit boxes at your bank belong to the person in question?
(b) Which rights of disposal (Verfügungsberechtigungen) does the person in question have?
(c) Who else has a right of disposal?
(d) Do other accounts exist, for which the person in question is the beneficiary?
(e) If yes, what are the current balances of these accounts?
(f) If bank accounts have been closed by the person in question, please submit the date and balance of closure and where the money was transferred after closure.
(g) Which addresses of the person in question are known to you?
(h) Are you aware of any money transfers or other transactions to foreign countries? If yes, please specify the bank, account and amount of each transfer or transaction.
(i) Please submit a compilation of all transactions for all existing or closed accounts from 1 January 2009 onwards.
(j) Are there any credit cards connected to any of the accounts?
7. The bank complied with both requests for information and submitted the information to the public prosecution office. In both instances, the public prosecutor did not order the bank to submit the information, but pointed to the obligations of witnesses stipulated in the CCP and the possible consequences of non‑compliance (see paragraph 18).
8. The information received was analysed by the police and the public prosecutor, and then included in the investigation file as evidence. Therefore, everyone who had access to the case file, such as the lawyers of the co-accused, also had access to the applicant’s banking information, including the names of the applicant’s clients, who had transferred fees.
9. On 31 January 2012, after several unsuccessful requests, the applicant, as the lawyer of the accused, was granted access to the investigation files. From the case file he learned, for the first time, of the investigation measures concerning his own bank account.
10. On 24 April 2012 the applicant asked the Chief Public Prosecutor to hand over to him all data received from the bank and to destroy all correlating data at the public prosecution office. In his request, the applicant emphasised his role as a criminal defence lawyer, which was known to the acting public prosecutor, and the consequences for his clients, whose names were accessible through the banking information. He further argued that the investigation measures lacked a legal basis.
11. On 2 May 2012 the Bochum Chief Public Prosecutor refused the applicant’s request. He stated that there was a suspicion that the money transferred from the client’s fiancée stemmed from illegal activities. Consequently it was legitimate for the public prosecutor to investigate whether further money transfers had taken place between the applicant and his client or the client’s fiancée. Therefore, since the investigation measures were legitimate, the information received had to be kept in the investigation file. The Chief Public Prosecutor further pointed out that there was no legal basis for returning the data or taking the documents out of the investigation file. The Chief Public Prosecutor named Section 161 of the CCP (see paragraph 17) as a legal basis for the information request, since the bank in question was a bank under public-law and therefore considered as an authority.
12. Subsequently, the file was transferred to the Bochum Regional Court, because the criminal proceedings against the applicant’s client had started. Therefore, the applicant requested the Regional Court to return the data.
13. On 19 July 2012 the Regional Court refused the applicant’s request. The court found that the investigation was lawful, that the bank had provided the information voluntarily, that the documents could therefore only be returned to the bank, but not to the applicant, and that the prohibition of seizure pursuant to Section 97 of the CCP (see paragraph 23) was not applicable, since the information was not in the applicant’s possession. Nonetheless, it also decided, in order to safeguard the client‑lawyer privilege, to separate the documents in question from the general court file and only grant access to them if reasons of sufficient interest were provided.
14. The applicant appealed against the decision. He challenged, in particular, the findings that the bank had acted voluntarily and that there had been sufficient suspicion for such an extensive analysis of his banking transactions. He further reiterated that, owing to his position as a lawyer, there were several safeguards in place concerning seizure of documents (see paragraphs 21-24) and these should not have been circumvented by the fact that his and his clients’ personal information was stored at, and by, the bank and not at his office.
15. On 13 September 2012 the Hamm Court of Appeal confirmed the decision of the Regional Court. It found that the decision was proportionate and that the safeguards were not applicable, in particular since the bank could not be considered as a person assisting the applicant or a person involved in the professional activities of the applicant pursuant to Section 53a of the CCP (see paragraph 22).
16. On 19 September 2013 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint without providing reasons (no. 2 BvR 2268/12).
B. Relevant domestic law
1. Legal basis for the request for information
17. Section 160 of the Code of Criminal Procedure (Strafprozessordnung) obliges the public prosecution office to investigate suspected criminal offences as soon as it obtains knowledge of them.
18. Section 161 § 1 of the CCP provides, as far as relevant, as follows:
“For the purpose indicated in Section 160 (...), the public prosecution office shall be entitled to request information from all authorities and to make investigations of any kind, either itself or through the authorities and officials in the police force, provided there are no other statutory provisions specifically regulating their powers. (...)”
19. Pursuant to Section 161a of the CCP, witnesses are obliged to appear before the public prosecution office and to make a statement. Sections 51 and 70 of the CCP stipulate that witnesses who, without a legal reason, refuse to testify can be charged with the costs caused by this refusal or can be detained for up to six months to force them to testify.
20. Section 94 of the CCP provides, as far as relevant, as follows:
“(1) Objects which may be of importance as evidence for the investigation shall be impounded or otherwise secured.
(2) Such objects shall be seized if in the custody of a person and not surrendered voluntarily.”
21. Section 95 of the CCP reads as follows:
“(1) A person who has an object of the above-mentioned kind (see Section 94 CCP) in his custody shall be obliged to produce it and to surrender it upon request.
(2) In the case of non-compliance, the regulatory and coercive measures set out in Section 70 may be used against such person. This shall not apply to persons who are entitled to refuse to testify.”
2. Protection of lawyers and lawyer-client privilege
22. Section 53 of the CCP reads, as far as relevant, as follows:
“(1) The following persons may also refuse to testify:
(...)
2. defence counsel for the accused, concerning the information that was entrusted to them or became known to them in this capacity;
3. lawyers, (...) concerning the information that was entrusted to them or became known to them in this capacity. In this respect, other members of a Bar Association shall be deemed to be lawyers;”
23. Section 53a of the CCP extends the right to refuse to testify to persons assisting and persons involved in the professional activities of those listed in Section 53 subsection (1), numbers 1 to 4, as part of their training.
24. Section 97 of the CCP extends the right to refuse to testify by prohibiting the seizure of certain objects. The section provides, as far as relevant, as follows:
“(1) The following objects shall not be subject to seizure:
1. written correspondence between the accused and the persons who, according to Section 52 or Section 53, subsection (1), first sentence, numbers 1 to 3b, may refuse to testify;
2. notes made by the persons specified in Section 53, subsection (1), first sentence, numbers 1 to 3b, concerning confidential information entrusted to them by the accused or concerning other circumstances covered by the right of refusal to testify;
3. other objects, including the findings of medical examinations, which are covered by the right of the persons mentioned in Section 53, subsection (1), first sentence, numbers 1 to 3b, to refuse to testify.
(2) These restrictions shall apply only if these objects are in the custody of a person entitled to refuse to testify (...) The restrictions on seizure shall not apply if certain facts substantiate the suspicion that the person entitled to refuse to testify participated in the criminal offence, or in accessoryship after the fact, obstruction of justice or handling stolen goods, or where the objects concerned have been obtained by means of a criminal offence or have been used or are intended for use in perpetrating a criminal offence, or where they emanate from a criminal offence.
(3) Insofar as the assistants (Section 53a) of the persons mentioned in Section 53a subsection (1), first sentence, numbers 1 to 3b, have a right to refuse to testify, subsections (1) and (2) shall apply mutatis mutandis.
(...)”
25. Section 160a of the CCP prohibits any investigation measure directed at a lawyer if it is expected to produce information in respect of which such a person would have the right to refuse to testify. Any information which is obtained nonetheless may not be used, but has to be destroyed without delay. The fact that the information was obtained and destroyed shall be documented. Where information about a lawyer is obtained through an investigation measure that is not aimed at him or her, and in respect of which such person may refuse to testify, the information again may not be used. The prohibition of investigation measures, as well as the inadmissibility of information, does not apply where certain facts substantiate the suspicion that the person who is entitled to refuse to testify participated in the offence or in accessoryship after the fact, obstruction of justice or handling stolen goods.
COMPLAINT
26. The applicant complains under Article 8 of the Convention that the public prosecution office collected information about his professional bank account and refused to hand the information over to him or to destroy it.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicant’s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?
2. If so, was that interference in accordance with the law in terms of Article 8 § 2?
3. If so, was that interference necessary in terms of Article 8 § 2?
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