Information Note on the Court’s case-law 191

December 2015

Brito Ferrinho Bexiga Villa-Nova v. Portugal - 69436/10

Judgment 1.12.2015 [Section IV]

Article 8

Article 8-1

Respect for private life

Absence of procedural safeguards or effective judicial review of decision to override lawyer’s privilege against disclosure of her bank statements in criminal proceedings: violation

Facts – Having failed to pay value-ad ded tax on fees received, the applicant, who is a lawyer, was asked by the tax authorities to produce her personal bank statements. She refused to do so, on grounds of professional confidentiality and bank secrecy.

The prosecuting authorities opened an inv estigation against the applicant for tax fraud. After being charged and giving evidence, the applicant acknowledged that the payments of her fees had been made into her personal bank account. However, she refused to produce the bank statements. The prosecu ting authorities requested the criminal investigating judge to lodge an interlocutory application for professional confidentiality to be lifted. The Court of Appeal granted the request. The applicant appealed against the Court of Appeal’s judgment to the S upreme Court, which declared her appeal inadmissible.

Law – Article 8: Consultation of the applicant’s bank statements had amounted to an interference, in accordance with the law, with her right to respect for professional confidentiality, which fell withi n the scope of private life under Article 8 of the Convention.

That interference had pursued a legitimate aim, namely, “the prevention of crime”, as the purpose had been to search for evidence and proof in the context of an investigation against the applic ant for tax fraud.

In the ensuing criminal proceedings a request to lift professional confidentiality had been made by the prosecuting authorities following the applicant’s refusal to produce the bank statements requested. Those criminal proceedings had be en conducted before a judicial body but without the applicant’s participation. Accordingly, she had not been involved at any time and had therefore been unable to submit her arguments. Furthermore, she had not been able to reply to the request made by the prosecuting authorities to the criminal investigating judge or to the opinion of the deputy prosecutor attached to the Court of Appeal.

The relevant legislation provided that the Lawyers Association had to be consulted in proceedings to have professional confidentiality lifted. In the present case, however, the Lawyers Association had not been consulted. Even if, having regard to the domes tic law, an opinion from the Lawyers Association would not have been binding, the Court considered that an opinion from an independent body should have been sought in the present case because the information requested had been covered by professional confi dentiality.

With regard to an “effective review” for the purposes of challenging the disputed measure, the applicant’s appeal to the Supreme Court against the Court of Appeal’s decision had not been examined on the merits as the Supreme Court had consider ed that the applicant had not had a right of appeal against the Court of Appeal’s judgment. Without substituting itself for the domestic courts, the Court found that the mere fact that the applicant’s appeal had been declared inadmissible by the Supreme Co urt had not satisfied the requirement of an “effective review” inherent in Article 8 of the Convention. Accordingly, the applicant had not had a remedy by which to challenge the measure complained of.

Regard being had to the lack of procedural guarantees a nd effective judicial review of the measure in question, the Portuguese authorities had failed to strike a fair balance between the demands of the general interest and the requirements of the protection of the applicant’s right to respect for her private l ife.

Conclusion : violation (unanimously).

Article 41: EUR 3,250 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Michaud v. France , 12323/11, 6 December 2012, Information Note 158 , and Sérvulo & Associados - Sociedade de Advogados, RL, and Others v. Portugal , 27013/10, 3 September 2015, Information No te 188 )

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

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