Attorney-client privilege shall be guaranteed practically and effectively, ECHR says

On October 2, 2018, the European Courtof Human Rights (ECHR) found that the client has a right to consult his attorney before the judicial authority orders a new seizure of its electronic media storages. Not only: ff the applicant challenges the seizure for violation of the attorney-client privilege, the competent authorities are required to proceed with an investigation to safeguard the privileged nature of the legal advice contained in the seized media.

In Visyv. Slovakia (no. 70288/13), Slovakian prosecuting authorities seized electronic media storage from the Austrian applicant’s office at the request of the Austrian authorities. The seizure was ordered because the applicant was suspected of being involved in fraud, breach of confidence and insider trading.

Later the Slovakian Constitutional Court found that the warrant for the seizure had not covered the applicant’s office. The seizure of any items had therefore been unlawful and they had to be returned. However – right after being returned – the media storage was immediately re-seized due to a rogatory from the Austrian prosecution service.

The Applicant complained with the Slovakian prosecuting authorities, without success. They rejected in particular his argument that he had not been able to confer with his lawyer because the items had been returned and re-seized within such a short space of time.

Also the Constitutional Court dismissed his complaint for lack of jurisdiction on the matter.

The Applicant brought a complaint in front of ECHR alleging in particular that the re-seizure of his business-related information, including legal advice protected by lawyer-client privilege, breached his rights under Article 8 (right to respect for private and family life, the home and the correspondence) and Article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

The ECHR found a violation of Article 8 and ordered Slovakia to pay 2,000 euros for non-pecuniary damages.

The Court noted first of all that the re-seizure was based on a rogatory letter issued by the Austrian prosecution service without judicial control. It then observed that

“the re-seizure was merely a preliminary measure with a view to making use of the re-seized items in the main proceedings in Austria … However, the Convention is intended to guarantee rights and freedoms that are practical and effective as opposed to ones that are 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.

In sum, as the domestic authorities have failed to provide relevant and sufficient reasons for dismissing the applicant’s complaints in relation to the re-seizure, in which respect he has not had the benefit of effective safeguards against arbitrariness and abuse, the re-seizure cannot be seen as having been proportionate to the legitimate aim it pursued, and thus necessary in a democratic society.”

Visy v. Slovakia (no. 70288/13) is available at…   

For more information and assistance on the rights attaining legal advise Francesca Giannoni-Crystal.