Information Note on the Court’s case-law No. 101
October 2007
Wieser and Bicos Beteiligungen GmbH v. Austria - 74336/01
Judgment 16.10.2007 [Section IV]
Article 8
Article 8-1
Respect for correspondence
Failure to comply with procedural safeguards in search and seizure of electronic data on a lawyer’s computer system:violation
Facts: The first applicant was a lawyer and the owner and general manager of the second applicant, a holding company. The second applicant was the sole owner of another company, Novamed. Both companies were based at the first applicant’s law office. Following a request for legal assistance from the Italian authorities in connection with a criminal investigation, a regional court issued a warrant to search the companies’ head offices. During the search one group of police officers, in the presence of the first applicant and a representative of the bar association, looked for hard-copies of files relating to the second applicant and Novamed. If the first applicant objected to the immediate examination of a document, it was sealed and deposited with the regional court as required by the Code of Criminal Procedure. All seized and sealed documents were listed in a report signed by the first applicant and the officers. Simultaneously, another group of officers examined the first applicant’s computer equipment and copied several files to disk. An IT specialist and the bar association representative briefly attended that search. However, no report was drawn up until later in the day. It indicated that the officers had not taken a complete copy of the server, but had carried out a search of the names of the two companies and of the suspects in the criminal proceedings. The investigating judge subsequently opened, in the presence of the first applicant, the documents that had been sealed. Some were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on his duty of professional secrecy. The first and second applicants complained to the domestic courts that the search and seizure procedure in respect of the electronic data had violated the first applicant’s professional secrecy obligations. However, their complaints were dismissed.
Law: The search and seizure of the applicants’ electronic data amounted to interference with their right to respect for their “correspondence”. The Code of Criminal Procedure had specific rules on the seizure of documents and under the case-law of the domestic courts these rules were also applicable to electronic data. The search and seizure served the legitimate aim of preventing crime. However, while the safeguards had been complied with in respect of the hard-copies of the documents seized, they had not been observed in respect of the electronic data. In particular, the representative of the bar association had not been able to properly supervise that part of the search, the report had been drawn up too late, and neither the first applicant nor the bar association representative had been informed of the results of the search. Although the first applicant was not the second applicant’s counsel, he did act as counsel for numerous companies whose shares it held. Moreover, the electronic data seized contained by and large the same information as the paper documents, some of which the investigating judge had returned to the first applicant as being subject to professional secrecy. It could therefore be reasonably assumed that the electronic data seized also contained such information. The police officers’ failure to comply with certain procedural safeguards aimed at preventing “arbitrariness” and protecting lawyers’ professional secrecy had made the search and seizure of the first applicant’s electronic data disproportionate to the legitimate aim pursued.
Conclusion: violation (four votes to three).
Article 41 – EUR 2,500 for non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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