The lack of an established legal framework for the protection of a lawyer-client privilege during the search of e-correspondence has led to a violation of the Convention

In the case of Saber v. Norway (no. 459/18, 17.12.2020) the European Court of Human Rights found a violation of Article 8 (right to respect for correspondence) of the European Convention on Human Rights.

The case concerned a lawyer-client privilege („LPP”) and a legal dispute over the applicant’s smart phone being searched by the police. The applicant’s smart phone was seized by the police on 23 November 2015 in the context of a criminal investigation against two people for conspiracy to murder him. 

The police wished to search the phone in order to shed light on possible conflicts between the suspects and the applicant. Applicant stated that his phone contained email and SMS correspondence with two lawyers defending him in another criminal case, in which he was a  suspect  (proceedings  which  ended  with his acquittal in 2019). The police and the applicant agreed that the data copied from his phone first had to be sifted out by the courts and any data protected by legal professional privilege removed before the police could carry out their search. However, the City Court then abandoned the filtering procedure because the Supreme Court had in the meantime given a decision – unrelated to the applicant’s case –   indicating that it    should in fact be the police which filtered such data.

Firstly, the Court took note of the circumstance that the proceedings relating to the filtering of LPP in cases such as the present one lacked a clear basis in the Code of Criminal Procedure right from the outset, which rendered them liable to disputes such as that which followed the Supreme Court’s decision. Secondly, the actual form of the proceedings could hardly be foreseeable to the applicant – notwithstanding that he was allowed to object  – given that they were effectively reorganised following that decision. In this context the Court emphasises that it has noted that the Government did indeed point to the procedural safeguards in place relating to searches and seizures in general; the Court’s concern is, however, the lack of an established framework for the protection of LPP in cases such as the present one. On that point, the Court also pointed to the lack of provisions suited to situations where LPP data form part of batches of digitally stored data, and indicated that it would be natural to regulate the exact issue that arose in the instant case by way of formal provisions of law. 

In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention. In the light of the above, the Court found that there has been a violation of Article 8 of the Convention.

References from the official website of the European Court of Human Rights