Information Note on the Court’s case-law 197

June 2016

Versini-Campinchi and Crasnianski v. France - 49176/11

Judgment 16.6.2016 [Section V]

Article 8

Article 8-1

Respect for correspondence

Respect for private life

Use as evidence in disciplinary proceedings against a lawyer of transcript of conversation with client whose telephone was being monitored: no violation

Facts – The applicant * , Ms Crasnianski, who is a lawyer, had a telephone conversation in December 2002 with a client whose telephone line was being tapped at the request of an investigating judge. The transcript of the conversation showed that the applicant had disclosed information covered by legal professional privilege. The principal public prosecutor sent the transcript to the Bar Council for disciplinary proceedings to be commenced, following which a penalty was imposed.

Law – Article 8: The Court acknowledged the existence of an interference with the right to respect for private life and correspondence not only of the person whose telephone had been tapped, but also of the applicant, whose communication had been intercepted and transcribed. That interference had continued by the use of that transcript in the subsequent disciplinary proceedings.

(a) Sufficient legal framework and legitimate aim – On the basis of the relevant provisions of the Code of Criminal Procedure and the case-law of the Court of Cassation, the applicant, who was a legal practitioner, had been in a position, in the context of the present case, to foresee that her client’s telephone line was likely to be tapped and that disclosing information covered by legal professional privilege would expose her to criminal or disciplinary proceedings.

The interference had therefore been “in accordance with the law”. Moreover, it had pursued the legitimate aim of “prevention of disorder”.

(b) Proportionality

i. Effectiveness of the judicial review available to the applicant – In the present case the telephone tapping and transcript of the conversation had been ordered by a judge and carried out under the latter’s supervision; a judicial review had taken place in the context of criminal proceedings brought against the applicant’s client; and the applicant had obtained a review of the lawfulness of the transcript of the telephone-tapping records in the context of the disciplinary proceedings brought against her.

Consequently, even though the applicant had not been able to apply to a judge to have the transcript of the telephone conversation in question annulled, the Court considered that her case was distinguishable from that of Matheron v. France ( 57752/00 , 29 March 2005): in the particular circumstances of the present case there had been an effective scrutiny capable of limiting the interference complained of to that which was necessary in a democratic society.

ii. Weight to be given to the fact that the conversation in question had been between a lawyer and her client – By clearly stating that the statutory exception to the principle of privileged communications between a lawyer and his or her client could not impinge on respect for the rights of the defence, French law contained an adequate and sufficient safeguard against abuse. Accordingly, as the transcript of the conversation between the applicant and her client had been based on the fact that the contents of that exchange gave rise to a presumption that the applicant had herself committed an offence, and the domestic courts had satisfied themselves that the transcript did not infringe the client’s defence rights, the fact that the former was the latter’s lawyer did not suffice to find a violation of Article 8 in her regard.

Regarding the idea that the possibility of criminal proceedings against a lawyer on the basis of the transcript could have a chilling effect on the freedom of communication between the lawyer and his client, and thus on the latter’s defence rights, that submission was not arguable where the comments made by the lawyer himself were capable of amounting to illegal conduct on his part. A legal practitioner such as a lawyer was particularly well qualified to know where the limits of lawfulness lay and to realise that, where applicable, his communications with a client were capable of giving rise to a presumption that he had himself committed an offence. This was especially true where the utterances themselves were capable of amounting to an offence, such as a breach of professional confidentiality as defined in the Criminal Code.

Accordingly, the interference was not disproportionate to the legitimate aim pursued.

Conclusion : no violation (unanimously).

(See also Lambert v. France , 23618/94 , 24 August 1998; Michaud v. France , 12323/11, 6 December 2012, Information Note 158 ; and Pruteanu v. Romania , 30181/05 , 3 February 2015)

* The part of the application concerning Mr Versini-Campinchi was declared inadmissible.

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

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