Last Updated on December 29, 2020 by LawEuro
. The case raises issues under Article 8 of the Convention as regards the proportionality of a measure taken against the applicant – namely the seizure of his tablet computer, which contained privileged information – on the basis of a search warrant issued by a judge in connection with criminal proceedings.
FIFTH SECTION
CASE OF MOČUĻSKIS v. LATVIA
(Application no. 71064/12)
JUDGMENT
STRASBOURG
17 December 2020
This judgment is final but it may be subject to editorial revision.
In the case of Močuļskis v. Latvia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Mārtiņš Mits,
Ivana Jelić, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 71064/12) against the Republic of Latvia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Latvian national, Mr Juris Močuļskis (“the applicant”), on 2 November 2012;
the decision to give notice to the Latvian Government (“the Government”) of the complaint concerning Article 8 and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee.
Having deliberated in private on 19 November 2020,
Delivers the following judgment, which was adopted on that date:
1. The case raises issues under Article 8 of the Convention as regards the proportionality of a measure taken against the applicant – namely the seizure of his tablet computer, which contained privileged information – on the basis of a search warrant issued by a judge in connection with criminal proceedings.
THE FACTS
2. The applicant was born in 1966. He lives in Riga, where he also practises as a lawyer (advokāts). He is a member of the Latvian Bar Association (Latvijas Zvērinātu advokātu kolēģija).
3. The Government were represented by their Agent, Ms K. Līce.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Facts leading to the seizure of the applicant’s tablet computer
5. On 15 November 2011 the State Police Department for Combating Organised Crime (Valsts policijasOrganizētās noziedzības apkarošanas pārvalde – “the organised crime department”) instituted criminal proceedings relating to trafficking in human beings.
6. On 30 January 2012 the applicant’s client, L.M., was arrested in connection with those proceedings; her home was searched and her portable computer was seized. She was placed in a short-term detention facility. On 1 February 2012 she was declared a suspect in those criminal proceedings. The following day, she was released on bail.
7. On 31 January 2012, from about 1 a.m. to 2 a.m., the applicant visited L.M. in the short-term detention facility.
8. On 31 January 2012, at about 4.15 a.m., an email account that had been used by L.M. was blocked and all of its content was deleted.
II. Seizure and examination of the applicant’s tablet computer
9. On 12 March 2012 a judge of the Riga City Ziemeļu District Court (Rīgas pilsētas Ziemeļu rajona tiesa) issued a search warrant in respect of the applicant’s home in order to find and seize a computer possibly containing information about the email account which could serve as evidence in criminal proceedings relating to trafficking in human beings (see paragraphs 5-8 above). There were indications that the email account had been blocked and its content deleted using an IP address which was registered at the address where the applicant resided. The judge referred to section 122(2) of the Criminal Procedure Law (Kriminālprocesa likums) and held that the seizure of a lawyer’s computer – if it had been used to conceal an especially serious crime – did not breach the lawyer’s procedural immunity (see paragraph 27 below).
10. On 13 March 2012 several police officers from the organised crime department and an IT expert arrived at the applicant’s home. Having read the search warrant, the applicant voluntarily surrendered his tablet computer. The police also seized another portable computer that belonged to the applicant’s adult daughter. That computer was returned as soon as it was established that it did not contain any relevant material. The seizure of the applicant’s daughter’s computer is not the subject matter of this application.
11. The applicant signed the search record, without making any remarks or comments in the relevant field. A copy of the search record was then issued to him.
12. According to the applicant, his tablet computer contained confidential notes and other information about civil proceedings, constitutional proceedings, proceedings before the European Court of Human Rights, and criminal proceedings against his clients, including L.M. According to the Government, the applicant did not inform the police officers that his tablet computer contained such information.
13. On 13 March and 17 April 2012 forensic IT examinations of the tablet computer were ordered and their results were subsequently made known.
III. Criminal proceedings against the applicant
14. On 5 April 2012 the organised crime department instituted criminal proceedings against the applicant for concealing an especially serious crime.
15. On 24 May 2012 the applicant was declared a suspect in those proceedings.
16. On 14 June 2012 a prosecutor brought the charges against the applicant.
17. On 30 November 2012 the case was sent for adjudication to a first-instance court. At the time of the exchange of the parties’ observations, the case against the applicant was pending before that court together with the case against L.M.
IV. Review of the applicant’s complaints
A. Regarding the search warrant for the applicant’s home
18. On 20 March 2012 the applicant complained to the President of the Riga City Ziemeļu District Court about the search warrant.
19. On 2 April 2012 the President confirmed the lawfulness of the search warrant and dismissed the applicant’s complaint. She held that the search warrant had been issued in accordance with the law and that there were no grounds for considering that the lawyer’s procedural immunity had been breached.
B. Regarding actions taken by the police officers
20. The applicant lodged several complaints about the actions of the police officers during the search and about the seizure of his tablet computer.
21. In particular, on 13 April 2012 the applicant complained to a supervising prosecutor. He requested that his tablet computer be returned, since it contained all his confidential notes and other information in civil proceedings, constitutional proceedings, proceedings before the European Court, and criminal proceedings against several clients, including L.M. Some of those proceedings concerned matters under investigation in the organised crime department. This meant that the police officers had access to his confidential notes about his clients’ defence positions, and details of the identity of witnesses for the defence and of confidential conversations with his clients. The applicant requested information about anyone who had had access to those notes.
22. On 22 May 2012 the prosecutor dismissed the applicant’s complaint. He considered that the seizure of the tablet computer had been lawful and justified. It had been admitted as evidence and had to be stored until such time as a court judgment became effective or until the expiry of the time‑limit for lodging an appeal against the decision to terminate the criminal proceedings – unless any grounds for its return had been established (see paragraphs 28‑29 below). In response to the applicant’s argument that the tablet computer contained confidential information, the prosecutor noted that the relevant investigating authority was under an obligation to safeguard that information. The prosecutor saw no reason for concern that the information could become available to unauthorised persons. He noted that the seized computer was being stored as required by law, but did not provide more details in that regard. The prosecutor concluded that the search of the applicant’s home had been lawful and that the police officers’ actions had been lawful and justified.
23. On 2 July 2012 a superior prosecutor dismissed a complaint by the applicant. She did not consider that any further explanation about the lawfulness of the search was necessary.
24. On 30 July 2012 another superior prosecutor, by a final decision, dismissed a further complaint by the applicant. He reiterated that the search warrant had been issued in accordance with the law. The prosecutor was not persuaded by the applicant’s argument that he had voluntarily surrendered his tablet computer so that the IT expert could carry out all the necessary checks on site. There was no indication that the IT expert had received such instructions from the relevant investigating authority. The police officers had seized the objects lawfully. The search record had been drawn up in accordance with the law.
RELEVANT LEGAL FRAMEWORK
I. Constitution
25. Article 96 of the Constitution (Satversme) guarantees the “inviolability of private life, the home and correspondence”.
II. Criminal Procedure Law
26. Sections 179 to 185 of the Criminal Procedure Law set out the general terms governing searches of premises. The relevant parts have been summarised in Vinks and Ribicka v. Latvia (no. 28926/10, §§ 62‑65, 30 January 2020).
27. The principle of a lawyer’s procedural immunity is laid down in section 122 of the Criminal Procedure Law, which reads as follows:
“(1) It shall be prohibited:
…
2) to monitor, inspect or seize documents that a lawyer has prepared, or correspondence that he or she has received or sent while providing legal assistance, as well as to carry out a search in order to find and seize such correspondence and documents;
3) to monitor information systems and means of communication used by a lawyer in providing legal assistance, obtain information from them and interfere with their operation.
(2) Unlawful activity by a lawyer … in the interests of the client in providing legal assistance of any form … shall not be deemed to constitute legal assistance.”
28. The storage of physical evidence and documents are subject to the terms laid down in section 239(1) of the Criminal Procedure Law, which reads as follows:
“Physical evidence and documents shall be stored until a court judgment enters into effect or until the expiry of the time-limit set for an appeal against the decision to terminate criminal proceedings unless any grounds laid down in section 235(2) of this Law have been established”.
29. Section 235(2) of the Criminal Procedure Law provides as follows:
“Objects and documents obtained during the course of investigative activities shall be returned to the owner or lawful possessor … if one of the following grounds is established:
1) … the relevant objects and documents do not hold any significance as evidence in criminal proceedings; or
2) the necessary investigative activities with the relevant objects and documents have been carried out and their return … does not impair subsequent criminal proceedings.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
30. The applicant complained about the seizure of his tablet computer, which contained privileged information, and alleged that the measure had been disproportionate. He relied on Article 8 of the Convention, which 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.”
A. Admissibility
31. The Court notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicant
32. The applicant alleged interference with his rights protected under Article 8 § 1 of the Convention. He expressly relied on the right to respect for his correspondence. The seizure of the applicant’s tablet computer containing confidential notes about his clients and their cases (see paragraph 12 above) had been carried out in breach of the principle of professional secrecy and independence of lawyers. Referring to Foxley v. the United Kingdom (no. 33274/96, 20 June 2000), the applicant emphasised that the lawyer-client relationship was in principle privileged, and correspondence in that context, whatever its purpose, concerned matters of a private and confidential nature.
33. The applicant submitted that the inference in issue had not been carried out in accordance with the law. The email account as such had not constituted evidence within the meaning of the Criminal Procedure Law. If that email account had indeed been important evidence, it remained unclear why the police had not seized L.M.’s computer until 30 January 2012, whereas the proceedings had been instituted more than two months earlier. The applicant was of the view that the necessity and proportionality of the interference with his rights had not been assessed at domestic level. He also submitted that his tablet computer contained important electronic evidence with regard to L.M.’s innocence.
(b) The Government
34. The Government accepted that there had been an interference with the applicant’s right to respect for his home on account of the search. However, they had doubts whether there had been an interference with the applicant’s right to respect for his correspondence because (i) the applicant had firmly denied having access to the email account in issue; and (ii) the police officers had not accessed any data stored on the applicant’s tablet computer other than the Internet browser’s history log to verify whether that device had been used to access the email account.
35. Firstly, the search had been authorised by the investigating judge, in accordance with the procedure laid down in the Criminal Procedure Law. Secondly, the interference had pursued the legitimate aims of furthering the interests of public safety, preventing crime, and protecting the rights and freedoms of others as it had been carried out with a view to discovering physical evidence that might be instrumental in any criminal investigation into serious offences.
36. Thirdly, the Government insisted that the interference had been “necessary in a democratic society”. The search warrant had been based on sufficiently reasonable suspicion against the applicant. The scope of the search warrant had been drafted in such terms as to prevent any arbitrariness or abuse. It had clearly identified the objects which were supposed to be sought and seized. As to the manner in which the search had been carried out, the evidence seized had been strictly limited to what had been specified in the search warrant. The applicant had willingly handed over his tablet computer. He had not made any objections about the seizure of privileged information, and he had not expressed any concerns in that regard in the search record. The Government also emphasised that the applicant had never lodged any complaints about the content of his tablet computer. He had not requested that a copy be made of the professional material contained on it.
37. Lastly, the applicant could not rely on the protection of lawyer-client confidentiality. He could not defend L.M. because he had been declared a suspect and charged with a related crime (see paragraph 15 above).
2. The Court’s assessment
(a) Whether there was an interference
38. The search of a lawyer’s office may prompt the Court to consider the matter from the standpoint of interference with “private life”, “home” and “correspondence” (see Niemietz v. Germany, 16 December 1992, §§ 29‑33, Series A no. 251‑B; Sallinen and Others v. Finland, no. 50882/99, §§ 70‑72, 27 September 2005; and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, §§ 43-45, ECHR 2007‑IV).
39. More specifically, the Court has held that the storing by a public authority of a copy of the electronic data seized from a law firm constitutes in itself an interference with the lawyer-client relationship, which is protected by professional privilege, and with the lawyers’ right to respect for their “correspondence” within the meaning of Article 8 (see Kırdök and Others v. Turkey, no. 14704/12, §§ 36-37, 3 December 2019).
40. The Court considers that the above principles are also applicable in the present case. The search warrant expressly authorised the seizure of a computer possibly containing information about the email account; and there had been some indication that that email account had been accessed using an Internet connection registered at the applicant’s home. The police were well aware that the applicant was a lawyer – this was evident from the search warrant, and from the case material on the basis of which the search warrant had been issued. The fact that the applicant’s tablet computer was seized from his home, and not from his office, is not relevant as the applicant used that device to provide his services as a lawyer. The device contained confidential material about his clients and various pending proceedings (see paragraphs 12, 21 and 32 above).
41. Furthermore, it is undisputed that the police seized the applicant’s tablet computer and that it was to be stored as evidence until a final court decision had been given in the criminal proceedings (see paragraph 22 above). The Court cannot accept the Government’s argument that there was no interference because the police did not access any confidential material. The mere storing of such material is indicative of an interference (see Kırdök and Others, cited above, § 36, in relation to the storing of electronic data). The subsequent use of that material has no bearing on that finding (see Kopp v. Switzerland, 25 March 1998, § 53, Reports of Judgments and Decisions 1998‑II, and Amann v. Switzerland [GC], no. 27798/95, § 69, ECHR 2000‑II).
42. Taking into account the fact that the applicant’s tablet computer contained confidential material about his clients and ongoing proceedings, and that the police had access to the Internet browser’s history log, the Court considers that the seizure of the applicant’s tablet computer amounted to an interference with the right to respect for his “private life” and his “correspondence” (see Kopp, cited above, §§ 51-53, in relation to the interception of telephone calls; Robathin v. Austria, no. 30457/06, § 39, 3 July 2012, in relation to the search and seizure of electronic data; and Wolland v. Norway, no. 39731/12, § 52, 17 May 2018, in relation to the search and seizure of a large number of documents, including mirror copies of the applicant’s computer and hard disk).
(b) Whether the interference was justified
43. Next, the Court has to determine whether the interference was justified under paragraph 2 of Article 8 – in other words, whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve those aims.
(i) In accordance with the law
44. The Court observes that the search had a statutory basis, namely section 180 of the Criminal Procedure Law. It dismisses the applicant’s argument that the search was carried out in breach of domestic law. The Court notes that the judge and, subsequently, the President of the Riga City Ziemeļu District Court considered that the search had been lawful in terms of domestic procedure. The Court sees no reason to hold otherwise. It follows that the interference complained of was in accordance with the law.
(ii) Legitimate aim
45. The Court accepts that the seizure of the applicant’s tablet computer pursued the legitimate aim of preventing crime and protecting the rights and freedoms of others, both of which are legitimate aims.
(iii) Necessary in a democratic society
(1) General principles
46. The Court refers to the general principles recently summarised in Vinks and Ribicka, cited above, §§ 101-04).
47. Moreover, the Court has previously acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyer and client, and protecting legal professional privilege. The Court has already pointed out that the role played by the Chairman of the Bar constitutes a guarantee when it comes to protecting legal professional privilege. In André and Another v. France (no. 18603/03, §§ 42 and 43, 24 July 2008), it specified that the Convention did not prevent domestic law from allowing for the possibility of searching a lawyer’s offices as long as proper safeguards and a strict framework were provided; more broadly, it emphasised that, subject to strict supervision, it was possible to impose certain obligations on lawyers concerning their relations with their clients, in the event, for example, that there was credible evidence of the lawyer’s involvement in an offence and in the context of the fight against money-laundering. It then took into account the fact that in the case at hand, the search had been carried out in the presence of the Chairman of the Bar, which it saw as a “special procedural guarantee”. Similarly, in Roemen andSchmit v. Luxembourg (no. 51772/99, § 69, ECHR 2003‑IV) it noted that the search of the lawyer’s premises had been accompanied by “special procedural safeguards”, including the presence of the Chairman of the Bar. Lastly, in Xavier Da Silveira v. France (no. 43757/05, §§ 37 and 43, 21 January 2010), it found a violation of Article 8, in part because there had been no such safeguard in place when a lawyer’s premises had been searched (see Michaud v. France, no. 12323/11, § 130, ECHR 2012).
48. In comparable cases, the Court has examined whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness. Elements taken into consideration are, in particular, whether the search was based on a warrant issued by a judge and based on reasonable suspicion, whether the scope of the warrant was reasonably limited and – where the search of a lawyer’s office was concerned – whether, for example, the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, with further references therein).
(2) Application of these principles to the present case
49. In the present case the seizure complained of was based on a search warrant issued by the investigating judge in the context of criminal proceedings against the applicant’s client, who was suspected of trafficking in human beings. The applicant was suspected of concealing an especially serious crime. The warrant gave details in respect of the alleged acts and the time of their commission. Accordingly, the Court is satisfied that the search warrant was based on reasonable suspicion.
50. Turning to the question of the scope of the search warrant, the Court notes that it was sufficiently clear. There were indications that an Internet connection registered at the applicant’s address had been used to access the email account in question. The search warrant was issued with a view to finding and seizing a computer which could have been used to access the account. There was no other possibility of obtaining evidence in relation to that account, as it had been deleted. Thus, the Court agrees with the Government that the search warrant was reasonably limited in scope. The search was carried out within the defined limits as only the objects specified in the search warrant were seized, namely the applicant’s tablet computer and his daughter’s portable computer. As soon as it was established that the computer belonging to the applicant’s daughter did not contain any relevant data, it was returned. The Court considers that the search warrant was executed within reasonable bounds.
51. That being said, the State also has to ensure adequate and effective safeguards against abuse. As noted above, one of the elements to be taken into consideration by the Court in that respect is whether the search was carried out in the presence of an independent observer to ensure that materials subject to professional secrecy were not removed (see paragraph 48 above). The Court would add here that other procedural guarantees may also be envisaged (see, for example, Wieser and Bicos Beteiligungen GmbH, § 60, and Robathin, § 48, both cited above; and Sérvulo & Associados – Sociedade de Advogados, RLand Others v. Portugal, no. 27013/10, § 105, 3 September 2015).
52. The Court finds that such safeguards were not ensured in the present case for the following reasons. The seizure of the applicant’s tablet computer was not accompanied by adequate and effective safeguards to prevent interference with professional secrecy, such as, for example, a prohibition on removing documents covered by legal professional privilege or supervision of the search by an independent observer (compare and contrast Tamosius v. the UnitedKingdom (dec.), no. 62002/00, ECHR 2002‑VIII, where the search was supervised by counsel capable of identifying, independently of the investigation team, which documents were covered by privilege; André and Another, § 43, and Roemen andSchmit, § 69, both cited above, where the searches were carried out in the presence of the chairman of the Bar). The fact that the applicant had made no remarks about the seizure of privileged information is of no relevance here as the police were well aware that he was a lawyer (see paragraph 40 above) and it is for the State to ensure a strict framework for such searches to be carried out (see André and Another, cited above, § 42).
53. Furthermore, there was no possibility of having an investigating judge decide whether or not particular material could be used by the investigation if the applicant had objected to such use on the grounds of professional confidentiality (compare and contrast Wieser and Bicos Beteiligungen GmbH, § 60, and Robathin, § 48, both cited above; and Sérvulo & Associados – Sociedade de Advogados, RLand Others, cited above, § 110).
54. Regardless of the Government’s submission to the contrary, there is no information to warrant the conclusion that only relevant information was accessed on the applicant’s tablet computer. There is no indication that any sort of sifting procedure was followed during the search or indeed thereafter in relation to the electronic data held on the applicant’s tablet computer (compare and contrast Wieser and Bicos Beteiligungen GmbH, cited above, §§ 62-63, as regards safeguards laid down by law, and Wolland, cited above, §§ 38 and 63, 17 May 2018, as regards safeguards applied in practice).
55. The Court dismisses the Government’s argument that the applicant did not raise any objection against the seizure of his tablet computer or that he did not request that a copy of its content be made. In contrast to the judgments in Wieser and Bicos Beteiligungen GmbH and Robathin, both cited above, where the domestic law allowed any disks with copied data to be sealed and submitted to the investigating judge, such a safeguard was not available to the applicant in the present case (see paragraph 53 above). In the absence of any further information in that regard, the Court finds it hard to believe that the applicant’s objection to the seizure, had it been recorded, would have prevented his tablet computer from being seized by the police.
56. The Court cannot agree with the Government that the applicant did not raise the issue of privileged information before the domestic authorities. He requested that his tablet computer be returned precisely because it contained privileged material. The supervising prosecutor refused that request and noted that the computer had to be kept as evidence until a final court decision had been given (see paragraphs 21‑22 above). It appears that the applicant’s tablet computer has not been returned to him as the criminal proceedings are still pending (see paragraph 17 above).
57. The Court can accept that, as a matter of principle, the retention of computers pursues the legitimate aim of securing physical evidence in an ongoing criminal investigation (see Prezhdarovi v. Bulgaria, no. 8429/05, § 49, 30 September 2014). However, the lack of any consideration of how relevant and necessary it was to retain all of the data stored on the applicant’s tablet computer for the duration of the criminal proceedings and the failure to address his concerns regarding the privileged material stored on that computer rendered the prosecutor’s review overly formalistic and deprived the applicant of effective safeguards against abuse.
58. In sum, the Court considers that the search carried out in the absence of adequate and effective safeguards to ensure the confidentiality of privileged material, the seizure of the applicant’s tablet computer and the retention of that computer until such time as a final decision had been adopted were not “necessary in a democratic society” to achieve the legitimate aim pursued.
59. There has therefore been a violation of Article 8 of the Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
60. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
61. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.
62. The Government contested that claim as unjustified and excessive. In view of the Court’s case-law (they referred to Prezhdarovi, cited above, § 61, and Robathin, cited above, § 57), they argued that the award should not exceed EUR 2,000.
63. The Court accepts that the applicant must have suffered some non-pecuniary damage. Ruling on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
64. The applicant did not submit a claim for the costs and expenses incurred before the domestic courts and the Court. Accordingly, the Court will not award any sum on that account.
C. Default interest
65. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 17 December 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Jovan Ilievski
Deputy Registrar President
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