Information Note on the Court’s case-law 246

December 2020

Saber v. Norway - 459/18

Judgment 17.12.2020 [Section V]

Article 8

Article 8-1

Respect for correspondence

Insufficient legal framework and safeguards for protecting data subject to legal professional privilege during police seizure of smart phone and search of its mirror image copy: violation

Facts – The applicant was a possible victim of an all eged crime. As part of the investigation, the police seized the applicant’s smart phone and captured a mirror image copy of it, which they wished to search.

The phone contained correspondence between the applicant and his lawyers, meaning that some of the content was subject to legal professional privilege (LPP) and therefore exempt from the search under domestic law. Through applying domestic law provisions on search and seizure by analogy, there was initial agreement that the data on the mirror image cop y had to be sifted through by the City Court and any LPP data removed, before the police could search the remainder. However, in a subsequent decision of the Supreme Court, which did not involve the applicant, it was determined that procedures relating to surveillance data were applicable instead.

In light of that decision, the City Court abandoned its filtering procedure and sent the mirror image copy back to the police, who examined the data.

Law – Article 8:

The search of the applicant’s smart phone an d/or the mirror image copy of it had entailed an interference with his right to respect for his correspondence. Moreover, the search had been carried out towards the applicant in his capacity of being the aggrieved party in the pertinent investigation.

While the interference had a formal basis in law, the Court had to determine whether the law was “compatible with the rule of law”; namely, whether it was sufficiently foreseeable. The Court made three observations in this regard:

1. The proceedings relati ng to the filtering of LPP in cases such as the present one had lacked a clear basis in the Code of Criminal Procedure right from the outset, which had rendered them liable to such disputes.

2. The actual form of the proceedings could hardly have been for eseeable to the applicant, given that they had effectively been reorganised following the decision of the Supreme Court.

3. Most importantly, subsequent to the Supreme Court’s decision, no clear and specific procedural guarantees had been in place to prev ent LPP from being compromised by the search of the mirror image copy of the applicant’s phone. The Supreme Court had not given any instructions as to how the police were to carry out the task of filtering LPP, apart from indicating that search words shoul d be decided upon in consultation with counsel; even though the claim lodged for LPP in the instant case had been undisputedly valid, the mirror image copy had effectively just been returned to the police for examination without any practical procedural sc heme in place for that purpose. A report by the police had described the deletion of data in the applicant’s case, but it had not described any clear basis or form for the procedure either.

There had indeed been procedural safeguards in place relating to s earches and seizures in general; however, the Court’s concern was the lack of an established framework for the protection of LPP in cases such as the present one. In its decision, the Supreme Court had also pointed to the lack of provisions suited to situa tions where LPP data formed part of breaches of digitally stored data, and had indicated that it would be natural to regulate the exact issue that had arisen in the instant case by way of formal provisions of law. The issue that arose in the instant case h ad not as such been owing to the Supreme Court’s findings, rather it had originated in the lack of appropriate regulations.

The Court had no basis to decide whether or not LPP had actually been compromised in his case. Nor was it necessary to consider whet her or under what circumstances credible claims for LPP in respect of specific data carriers entailed that they must be sent to a court or another third-party independent of the police and prosecution, in order to have any data covered by LPP deleted befor e the latter may proceed to search the data carriers. Instead, the lack of foreseeability in the instant case, due to lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, had already fal len short of the requirements flowing from the criterion that the interference must be in accordance with the law.

Conclusion: violation (six votes to one).

Article 41: Finding of violation constitutes sufficient just satisfaction.

(See also Laurent v. France , 28798/13, 24 May 2018, Information Note 218 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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