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Search and seizure in a law office – Robathin v Austria

 

In Robathin v Austria, the European Court of Human Rights (ECtHR) scrutinized a search and seizure in a law office in light of article 8 of the European Convention on Human Rights.
 
The applicant was an Austrian lawyer based in Vienna. In 2005, the prosecution conducted an investigation against him on suspicion of grave theft, fraud and embezzlement (later on, the investigation led to an indictment and a trial, but the applicant was finally acquitted of all charges).
 
In the course of the investigation, an investigative judge issued a warrant for the search of the applicant’s law office and the seizure of documents, personal computers, bank documents, saving books, deeds and will in favor of the applicant and of all files related to Mr R and Mr G.
 
During the search, the applicant, his defense lawyer and a representative of the bar association were present. The presence of the latter was required according to Austrian law, because the defendant was a lawyer.
 
The police officers, who conducted the search, copied all files from the applicant’s computer to discs. Upon a request by the representative of the bar association, they stored the files regarding Mr R and Mr G (which were expressly mentioned in the search-and-seizure warrant) on a separate disc.
 
Since the applicant objected to the data being scrutinized, pursuant to Austrian law a court had to decide whether the files which had been copied could be read by the investigating authorities. The Court approved the screening of all the data – not only the electronic files related to Mr R and Mr G. In the reasoning for this decision, the Court repeated the reasons which had already been given in the search warrant. It stated that the files had been seized in the course of an investigative procedure against the applicant and that the applicant’s duty to confidentiality did not play a role in an investigation targeting the lawyer himself.
 
The applicant filed an application with the European Court of Human Rights (ECtHR) relying on article 8 ECHR, which protects the right to respect for private life, family life, home and correspondence.
 
The ECtHR followed the approach it usually takes when dealing with cases involving article 8 ECHR: In a first step, it examined whether there as an interference with one of the rights protected by article 8 ECHR. In the second step, it scrutinized whether the interference had been justified pursuant to article 8 paragraph 2 ECHR.
 
The Court stated that the search and seizure in the office of the applicant amounted to an interference with the applicant’s rights under article 8 ECHR.
 
It then turned to the question whether requirements of article 8 paragraph 2 had been met. Pursuant to this provision, an interference with rights enshrined in article 8 paragraph 1 is justified if it is in accordance with the law, serves a legitimate aim and is necessary in a democratic society.
 
The European Court of Human Rights pointed out that the Austrian Criminal Procedure Code does not contain any provision expressly governing the search and seizure of electronic data; however, according to the standing jurisdiction of Austrian courts, the provisions regarding the seizure of objects and documents are applied to the seizure of electronic files. The European Court of Human Rights stated that the circumstances in which electronic files can be seized are specified in the jurisdiction of Austrian courts in a sufficient manner. Therefore it concluded that there had been a legal basis for the seizure.
 
The Court stated that the seizure had served a legitimate purpose, namely the fight against crime.
 
Subsequently, the Court turned to the question whether the search and seizure had been ‘necessary in a democratic society’. When scrutinizing this, the ECtHR establishes whether there are sufficient safeguards against arbitrary actions by the authorities, for example whether the search and seizure is based on a decision by a judge, whether there was a reasonable suspicion and whether the scope and purpose of the search are sufficiently clear. In case of the search of a law office, the ECtHR also scrutinizes whether an independent observer is present who ensure that privileged information is safeguarded.
 
The European Court of Human Rights pointed out that the search warrant was sufficiently precise regarding the suspicion against the applicant. It contained details on the alleged offences, the time when they allegedly took place and the damage allegedly caused.
 
However, the Court also stated that the scope and purpose of the warrant had been very broad, since it referred to documents, saving books, wills etc. In order to counterbalance this wide scope, safeguards were required. The ECtHR made clear that safeguards had indeed been in place: A list of all seized items and documents had been compiled, a representative of the bar association had been present during the search and the applicant had had the opportunity to have a court scrutinize whether the examination of the seized electronic data was permissible.
 
However, the European Court of Human Rights stated that this scrutiny by a court had not been an effective safeguard, because the Austrian court had only given very short, general reasons for its ruling. It had not dealt with the question at all, why it had not been sufficient to scrutinize only the electronic files regarding G. and R. (the persons who had been referred to in the warrant).
 
For this reason, the ECtHR was unable to examine whether the scrutiny of all electronic files had been proportionate to the aim pursued. Therefore, it considered the search and seizure not ‘necessary in a democratic society’ and found a violation of article 8 ECHR.
 

Balancing freedom of expression against the right to private life – Kurier Zeitungsverlag v. Austria

 

In Kurier Zeitungsverlag und Druckerei GmbH  v. Austria, the European Court of Human Rights has reiterated its jurisdiction on the balance between the right to respect for private life under article 8 ECHR on the one hand the right to freedom of expression (article 10 ECHR)  on the other hand.
 
The applicant was a publishing house which published the ‘Kurier’, a widespread Austrian daily newspaper. 
 
It had been convicted to pay compensation on the basis of the 'Austrian media act' on account of the reporting of the ‘Kurier’ on a law suit regarding custody of a child and the ensuing enforcement proceedings. The applicant claimed that this conviction amounted to an infringement of its right to freedom of expression.
 
The Austrian media act foresees that media can be liable to pay compensation in case they discuss or present a person’s strictly private life in public in a way which is apt to compromise this person. Compensation cannot be granted if the publication is true and has a direct connection to public life.
 
The ‘Kurier’ published three articles on a lawsuit and enforcement proceedings regarding the custody of a child. Following the divorce of a couple with two children, the parents had agreed that the mother should have custody for one child, the father for the other one. Shortly after, the father requested to be granted custody for his other son, Christian, too. The parents agreed that Christian should stay with his father until the request was decided upon. Contrary to the agreement, the father moved to Sweden with both of the children. A Court issued in injunction that Christian be returned to his mother. Later on, Austrian courts decided by final decision that the mother should have custody of Christian.
 
However, the father failed to comply with the order to hand Christian over to his mother. The authorities undertook without success several attempts to enforce the ruling of the Austrian court. On one occasion, the boy barricaded himself in a school. On another occasion, bailiffs found him in a car in front of his home, but he resisted their attempts to take him with them.
 
The applicant’s newspaper reported about these events in three articles. Inter alia, the articles criticized the fashion in which the authorities tried to enforce the decision on custody. Journalists received regular information on the state of affairs from Christian’s father. In one article, the ‘Kurier’ showed a picture of Christian crying and in a state of distress while trying to fight off bailiffs in front of his school. The article also stated the boy’s full name and gave details as to his whereabouts.
 
Represented by his mother, Christian filed a law suit on the basis of the media act. Austrian courts ruled in his favor and ultimately granted compensation in the amount of 9.000 Euros. The applicant claimed that this amounted to a violation of the right to freedom of expression under article 10 ECHR.
 
The European Court of Human Rights stated that the conviction was an interference with the rights enshrined in article 10 paragraph 1 of the Convention. It went on to scrutinize whether this interference had been justified pursuant to article 10 paragraph 2 ECHR. There was no doubt that the interference had been based on a law and had been imposed to serve a legitimate aim, namely the protection of the reputation of others.
 
The only issue in question was whether the interference had been necessary in a democratic society. The Court reiterated its long-standing jurisdiction that the term ‘necessary in a  democratic society implied that the measure had corresponded to a ‘pressing social need’. It underscored the importance of a free press in a democratic society, but underlined that the right to freedom of expression had to be weighed against the right to respect for private life.
 
The Court pointed out that it had to be considered if the person who had been subjected to reporting had entered the public scene already. Public figures have to tolerate further going interferences with their right to private life than people who are not in the public arena. In this respect, the  Court noted that Christian had not entered the public scene and had not become one on account of proceedings regarding his custody either.
 
The European Court of Human Rights also stated that publications which contribute to a debate of some public interest enjoy a stronger protection than publications which are merely to satisfy curiosity or to entertain readers. While the Court acknowledged that the publications contributed to a debate on a matter of public concern, namely enforcement proceedings in child custody cases, it stated that the disclosure of Christian’s identity had not been necessary to understand this debate.
 
It also underpinned that pictures fall into the scope of the right to private life under article 8 ECHR. Since the publication of a photo is a grave interference with article 8 para 1, the margin of appreciation granted to the member states in this area is small.
 
Finally, the Court held that the amount of compensation Austrian courts had convicted the applicant company to pay was not excessive and not likely to have a chilling effect on the freedom of expression. Consequently, the European Court of Human Rights did not find a violation of the applicant’s rights under article 10 ECHR.
 
 

Search of persons without reasonable suspicion in light of article 8 ECHR

 

In Colon v The Netherlands, the European Court of Human Rights has scrutinized laws authorizing the search of persons without reasonable suspicion in light of article 8 ECHR.
 
Pursuant to Dutch law, the mayor (Burgomaster) may designate certain areas as ‘security risk area’ for a limited time. As a consequence of this designation, the Public Prosecutor has the power to issue an order to the effect that  randomly selected persons within this area may be subjected to a search. The order by the public prosecutor is limited to 12 hours and may be issued at a time of his choosing. Before designating a ‘security risk area’, the mayor has to consult with the Public Prosecutor. He is also obliged to consult with the police authorities on a regular basis.
 
Following a significant rise in violent crime involving the use of weapons in Amsterdam, the mayor designated certain areas of the city as special security areas. At some stage, the Public Prosecutor issued an order authorizing random searches.
 
The applicant was stopped by the police but refused to agree to a search. He was taken to the police station and later on sentenced to a fine of 150 Euros for disobeying an order by the police. He appealed against this decision but his conviction was ultimately confirmed by the Dutch Supreme Court.
 
The European Court of Human Rights scrutinized whether the applicant’s right toprivate life under article 8 ECHR had been infringed. It stated that there had been an interference with the right to private life, since the applicant had run the risk to be stopped and searched at any time, yet it did not find a violation of the right to private life, because the interference had been justified pursuant to article 8 paragraph 2 ECHR.
 
It is interesting, to compare this decision to the judgment in Gillan and Quinton vUK, in which the Court held that British laws empowering police to search randomly selected persons violated the right to private life: In view ofgrowing dangers caused by terrorism (related to Northern Ireland and other issues), the Terrorism Act 2000 had been enacted. 
 
This act contained provisions pursuant to which certain senior police officers were empowered to issue an authorization to the effect that each uniformed police officer had the right to randomly, i.e. without any reasonable suspicion, stop and search persons in a certain area.
 
The existence and contents of these authorizations are not in the public domain. The Secretary of State had to be informed about this authorization and had the power to cancel or alter it. Also, the Secretary of State was obliged to report to the parliament on the use of the power to stop and search on a yearly basis.
 
In both cases, the Dutch case as well as the British one, the European Court of Human Rights held that the power to search persons without reasonable suspicion amounted to an interference with article 8 ECHR. 
 
Pursuant to article 8 paragraph 2 ECHR, such an interference has to be based on a law. The Court has specified which requirements a law prescribing an interference with the rights enshrined in article 8 paragraph 1 has to meet. The difference between the Dutch case and Gillan and Quinton v UK was that the British legal framework did not comply with these requirements while the Dutch law did.
 
As the European Court of Human Rights has reiterated, a law prescribing an interference with the right to private life has to be publicly accessible. While the designation of ‘security risk areas’ as well as the authorization to conduct searches issued by the Public Prosecutor were public documents in the Netherlands, in the UK the authorizations to stop and search given by senior police officers were not in the public domain.
 
Another requirement is that the scope of the law prescribing an interference with rights protected by article 8 paragraph 1 ECHR has to be clear and that sufficient safeguards against abuse have to be in place.
 
In the Netherlands, there was an effective possibility to challenge orders to search persons: Citizens could submit complaints regarding the designation of ‘special risk areas’ to the City Council and appeal against the decision of the Council before an administrative court.  In addition to that, Courts had to assess the legality of search orders independently when cases against persons who had refused to have themselves searched came before them.
 
In the UK, the order authorizing searches issued by a senior police officer had to be confirmed by the Secretary of State; however, the European Court of Human Rights did not consider this an efficient safeguard, because on the basis of available documents it came to the conclusion that the authorization was practically always confirmed. While it was true that the order expired after 28 days, it was renewable.
 
The Court also pointed out that there was hardly any possibility to challenge the decision of a uniformed police officer to make use of the power to stop and search somebody. Although it was in theory possible to appeal against this decision, the Court found that it was in practice almost impossible to show that a police officer had exceeded his powers, since so much discretion was conferred on him.
 
Due to these differences, the Court found the British law pertaining to searches without reasonable suspicion in violation of article 8 ECHR, while it found the Dutch rules to be compliant with the right to private life.
 

Interim measure in Yuliya Timoshenko v. Ukraine lifted

 

The European Court of Human Rights (ECtHR) has lifted the interim measure it had imposed in the case Yuliya Timoshenko v Ukraine on 31 May 2012.
 
Interim measures are not expressly stipulated in the European Convention on Human Rights; they are provided for in article 39 of the Rules of Court. These rules have been adopted by the ECtHR to govern details of the procedure before the Court. Article 39 of the Rule of Court provides that ‘the Chamber or, where appropriate, its President may indicate to the parties any interim measure which it considers should be adopted in the interest of the parties or of the proper proceedings before it’.
 
Interim measures are chiefly issued where an irreversible fact might be created or irreparable damage to an important right might be caused before the Court can make its ruling. The main areas of application are the right to life under article 2 of the Convention and the prohibition of torture pursuant to article 3 ECHR. In the case  Mamatkulov and Askarov v Turkey, the Court has held that interim measures are binding to the parties and that failure to comply with interim measures constitutes a breach of article 34 ECHR.
 
Miss Timoshenko had submitted an application to the Court in which she inter alia alleged that her criminal prosecution and that the conditions of her detention, the insufficient access to health care and the lack of judicial review amounted to infringements of articles 3 and 5 ECHR.
 
The Court had ordered an interim measure on 15 March 2012, in which it had requested that Miss Timoshenko receive adequate medical treatment. The Government had transferred her to a Ukrainian hospital and enabled her to be examined by a doctor of her choosing, a German neurologist. Given these development, the European Court of Human Rights was of the view that an interim measure was no longer called for. It therefore lifted the measure upon request by the Ukrainian Government.
 
At the same time, it rejected Yuliya Timoshenko’s motion to issue an interim measure that she be granted the possibility to obtain treatment in a German clinic.
 

Judgment in the case Bjedov v Croatia

 

 
 On 29 May 2012, the European Court of Human Rights handed down the judgment in the case Bjedov v. Croatia. The Court scrutinized the eviction of a senior citizen from the flat she lived in in light of the right to respect for home under article 8 of the European Convention on Human Rights.
 
The applicant, who was born in 1933 and received only a small pension, lived in a flat which she had rented on favorable conditions which were foreseen by law for indigent persons. According to this law, tenants could by the flat they lived in subject to certain conditions. The applicant had sought to exercise this right. Since her request had remained unanswered, she had filed a law suit against the city, which was the owner of the flat. In return, the city had initiated civil proceedings to evict the applicant from her flat. Following a number of appeals, the domestic court had ordered the eviction of the applicant by final decision.
 
The applicant contended inter alia that her eviction constituted a violation of her right to home under article 8 of the European Convention on Human Rights.
 
The European Court of Human Rights reiterated its jurisdiction that the right to home applied not only to residences occupied in a lawful manner. Thus, the applicant could invoke article 8 ECHR regardless of the final decision by domestic courts ordering her eviction.
 
The Court stated that the eviction order interfered with the applicant’s right to home. It then turned to the question whether this interference was justified pursuant to article 8 paragraph 2 ECHR.
 
Referring to the relevant Croatian laws, the Court found that the eviction order was based on a law. It reiterated, however, that the eviction also had to be necessary in a democratic society. In this respect, the European Court of Human Rights noted that the domestic courts had not assessed at all whether the eviction was necessary in a democratic society. Before Croatian courts, the applicant had expressly relied on her right to respect for home under article 8 ECHR; she had also advanced the argument that her eviction would render her homeless and submitted a medical certificate confirming the risks which an eviction would impose for her health, because of her high age. Yet, the domestic courts had failed to balance her interest to remain in the flat with the city’s interest in an eviction.
 
For these reasons, the European Court of Human Rights that the applicant’s eviction was not necessary in a democratic society and found a violation of article 8 ECHR.
 
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