Published on 10 May 2021

THIRD SECTION

Application no. 18421/20 Olav KUKLASE against Estonia lodged on 9 April 2020 communicated on 19 April 2021

SUBJECT MATTER OF THE CASE

The application concerns a search in a law-firm and a seizure of several documents and data carriers.

The applicant, a lawyer ( vandeadvokaat ), is a suspect in a criminal case. Following a request by the prosecutor, a judge authorised searches in his law office as well as in the car that the applicant used. It appears that during the searches in two law office locations (in Tallinn and in Võru ) as well as in the car a number of paper documents, computers, mobile phones, hard drives, USB flash drives and memory cards were seized (at least some items that were seized seem to have belonged to or were used by another lawyer, K.A.) Some of the materials and data carriers appear to have belonged to another lawyer working for the same law office. Although under domestic law the decision authorising the search (search warrant) could not be appealed against, the applicant lodged an appeal against it with the Tallinn Court of Appeal, arguing the unconstitutionality of the impossibility to appeal. He further argued that domestic law on searches did not provide sufficient procedural safeguards to protect confidentiality of the lawyer-client communication. Moreover, the search warrant had not been based on reasonable grounds of suspicion of him having committed an offence and had been drawn in overly broad terms. As a result, the search had led to a large-scale seizure of confidential materials. The applicant argued that the possibility of raising his complaints in an appeal against investigative activities ( uurimiskaebemenetlus ) or in the main criminal proceedings would not provide an effective remedy against the alleged infringements. The Tallinn Court of Appeal, and subsequently the Supreme Court, refused to examine his appeals. It would appear that the main criminal proceedings against the applicant are pending.

Relying on the arguments outlined above, the applicant claims the violation of his rights under Articles 8 and 13 of the Convention.

QUESTIONS TO THE PARTIES

1 . Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?

In particular, was the appeal against the search warrant, in conjunction with the claim of unconstitutionality of the impossibility to appeal against it, an effective remedy within the meaning of this provision in respect of the applicant ’ s complaint under Article 8 (compare Kruglov and Others v. Russia , nos. 11264/04 and 15 others, §115, 4 February 2020)?

The parties are also invited to elaborate on the effectiveness, as potential remedies, of the appeal against investigative activities ( uurimiskaebemenetlus ) , as well as of the possibility of raising the relevant complaint during the trial stage of the proceedings.

2 Has there been an interference with the applicant ’ s right to respect for his private life and/or correspondence and/or home within the meaning of Article 8 § 1 of the Convention? Whether and to what extent did the searches in the law office location in Võru and in the car interfere with the applicant ’ s rights (considering that these particular searches seem to concern – at least partially – another lawyer K.A.)?

3 . Was the interference in accordance with the law (referring both to the existence of legal basis as well as to the quality of law) and necessary in terms of Article 8 § 2? In particular, were there adequate, effective and sufficient safeguards against abuse, arbitrariness and breaches of legal professional privilege (see Golovan v. Ukraine , no. 41716/06, §§ 51-66, 5 July 2012; Kruglov , cited above, §§ 121-136; Robathin v. Austria , no. 30457/06, §§ 39-52, 3 July 2012; and Iliya Stefanov v. Bulgaria , no. 65755/01, §§ 34-45, 22 May 2008)?

4 . Did the applicant have at his disposal an effective domestic remedy for his Convention complaint under Article 8, as required by Article 13 of the Convention?

The Government are requested to submit a copy of the prosecutor ’ s application(s) for the authorisation of searches in the applicant ’ s law office as well as in the vehicle he used, and the decision of the Harju County court (in form of an inscription, pealdis ), dated 30 October 2019, authorising such searches