Last Updated on May 17, 2019 by LawEuro
Information Note on the Court’s case-law 222
October 2018
Visy v. Slovakia – 70288/13
Judgment 16.10.2018 [Section III]
Article 8
Article 8-1
Respect for correspondence
Respect for private life
Re-seizure of unlawfully seized materials five minutes after their restitution: violation
Facts – The applicant, an Austrian national and businessman, had an office in Bratislava (Slovakia). In 2009 that office had been searched by the Public Prosecution Service of Slovakia (“the PPS”) at the request of the Austrian prosecution service. Business documents and electronic storage media had been seized and handed over to the Austrian authorities. The Constitutional Court subsequently found that the terms of the warrant had been exceeded and ordered the restitution of the unlawfully seized items. At 9.10 a.m. on 7 March 2012 those items were restored to the applicant’s lawyer and, at 9.15 a.m., they were re-seized. The applicant’s complaints to the PPS were dismissed and his complaint before the Constitutional Court was declared inadmissible.
Law – Article 8: It had not been disputed that the re-seized materials contained business-related information and included legal advice protected by lawyer-client privilege. The re-seizure had been based on a letter rogatory issued by the Austrian prosecution service. There was no indication that at any stage in Austria or in Slovakia had it been ordered, endorsed, supervised or reviewed by a court. In so far as the assessment of the applicant’s case by the PPS had been later reviewed by the Constitutional Court, the scope of its review had been limited in two respects. First, the Constitutional Court had not reviewed the re-seizure as such. Rather, it had reviewed the assessment of the re-seizure by the PPS. Second, as the Constitutional Court had specifically pointed out, its review had been limited to issues of constitutionality, as opposed to lawfulness.
The applicant had contended that since the seizure had taken place immediately after the items in question had been returned to his lawyer, he had been deprived of the opportunity to confer with him and, by extension, of the possibility of properly exercising his rights. The Court noted that the summons for the handover of the material to be returned to the applicant had been relevant solely to its restitution to him and bore no reference to any re-seizure that was in fact to follow. Thus, the authorities’ reasoning that it had been the applicant’s free choice not to take part in person in the handover of the items to be restored and that, consequently, he could not complain of not being able to exercise his rights properly in person could not be accepted on the facts since the applicant had had no knowledge that the items would be seized again and accordingly could not have had any choice as to whether to participate in person or not. The reasoning provided by the domestic authorities in that respect could not therefore be considered relevant and sufficient. Furthermore, the applicant’s argument that the media that had been seized again contained legal advice protected by lawyer-client privilege did not appear to have been addressed at all by the PPS or the Constitutional Court.
The Court noted that the re-seizure had been merely a preliminary measure with a view to making use of the re-seized items in the main proceedings in Austria and that, had those items actually been transmitted to the Austrian authorities, it might have been open to the applicant to assert his rights and interests before them as appropriate. However, the Convention was intended to guarantee rights and freedoms that were practical and effective as opposed to ones that were theoretical or illusory. Therefore, in relation to the re-seizure, Slovakia remained bound by Article 1 of the Convention to secure the applicant his rights under the rights and freedoms defined in the Convention and its Protocols.
As the domestic authorities had failed to provide relevant and sufficient reasons for dismissing the applicant’s complaints in relation to the re-seizure, in which respect he had not had the benefit of effective safeguards against arbitrariness and abuse, the re-seizure could not be seen as having been proportionate to the legitimate aim it pursued, and thus necessary in a democratic society.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
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