Information Note on the Court’s case-law 188

August-September 2015

Sérvulo & Associados - Sociedade de Advogados, RL, and Others v. Portugal - 27013/10

Judgment 3.9.2015 [Section I]

Article 8

Article 8-1

Respect for correspondence

Large-scale seizure of computer files from lawyers’ office: no violation

In 2006 proceedings were instituted against several Portuguese and German nationals on charges of corrup tion, acquisition of prohibited interests and money laundering in connection with the purchase by the Portuguese Government of two submarines from a German consortium. The proceedings gave rise to two criminal investigations, the first relating to the actu al purchase of the submarines and the second to the payments allegedly made by the German consortium to certain Portuguese companies. State agents were suspected of obtaining pecuniary advantages in the course of these negotiations, to the detriment of the State. Both investigations were conducted under the supervision of the investigating judge who, at the material time, was the only judge of the Central Criminal Investigation Court.

In September 2009 the investigating judge issued two search warrants conc erning the business premises of the applicant firm. He stated that the search operations would be supervised by an investigating judge. Owing to another commitment he asked to be replaced on the day of the operations by two investigating judges of the Lisb on Criminal Investigation Court. The search warrants authorised access to all the offices of the applicant firm that had been occupied or used by the lawyers involved in the negotiations concerning the purchase of the submarines and the payments, and order ed:

– the seizure of any document, object or other item of evidence, especially in computerised form, connected to the crimes under investigation;

– the waiving of the requirement to protect the confidentiality of correspondence, stating that access to t he computer files should be based on thirty-five keywords;

– the copying of the files covered by professional privilege in stand-alone digital form for submission to the investigating judge.

Lastly, the investigating judge requested that a representative of the Bar Association be present during the operations.

As the applicants lodged an objection against the search operation, the documents that had been seized were placed under seal, without being inspected, and sent to the President of the Court of Appeal. In October 2009 the Vice-President of the Court of Appeal ruled that the seizure of the documents and computer files had been proportionate to the aim pursued, namely the administration of justice in highly complex cases, and that there had been no breach of the constitutional principle of respect for privacy. He ordered the documents to be sealed and sent to the Central Criminal Investigation Court. In 2011 the proceedings were divided into two separate investigations. All the documents seized were returned, with the exception of two hard disks which were returned to the applicant firm on conclusion of the second investigation.

The first set of proceedings was discontinued, while in the seco nd set of proceedings the accused were all acquitted.

In the Strasbourg proceedings the applicants complained about the searches carried out in their computer system and the seizure of computer files and emails.

Law – Article 8: The search and seizure oper ations in question constituted interference with the applicants’ right to respect for their correspondence. The interference was in accordance with the law and pursued the legitimate aim of preventing crime. As to whether it had been necessary in a democra tic society, several points had to be considered:

(a) Whether the reasons given had been relevant and sufficient – In view of the investigations and proceedings in progress, the search warrants had been based on reasonable grounds of suspicion.

(b) The content and scope of the search and seizure warrants – The searches carried out in the law firm’s computer system had been based on thirty-five keywords linked to the investigation. These had included some words in general use, such as “payments” and “ funding”, and words routinely used in a firm of lawyers specialising in financial law such as “swap” and “spread”. Consequently, at first sight, the scope of the search and seizure warrants appeared to have been wide. Following the review by the investigat ing judge of the Central Criminal Investigation Court, after which some 850 files had been deleted, 89,000 computer files and 29,000 emails that had been seized were apparently analysed.

(c) Whether the safeguards against abuse had been adequate and effec tive – In accordance with the Bar Association statutes, documents covered by legal professional privilege could not be seized unless the lawyer in question had been placed under formal investigation. The Code of Criminal Procedure and the Bar Association s tatutes also provided for a number of procedural safeguards concerning search and seizure operations in law firms.

In the present case a lawyer who had previously done work for the applicant firm had been placed under formal investigation for malfeasance i n the context of the ongoing criminal investigation. As to the conduct of the operations, the Court noted that:

– several of the applicants had been present during the operations;

– a representative of the Bar Association had also been there;

– an inves tigating judge had overseen the operations;

– the applicants had immediately made a complaint to the President of the Court of Appeal, with the result that the documents seized had been sealed, without the investigating judge inspecting them before they w ere sent to the President of the Court of Appeal and before the latter gave his decision;

– a record of the operations had been drawn up which indicated the items that had been seized;

– the Vice-President of the Court of Appeal had examined the applican ts’ request and found that there had been no flagrant breach of legal professional privilege in the case;

– the investigating judge of the Central Criminal Investigation Court had reviewed the items seized and ordered the destruction of some 850 files on the grounds that they contained information that was either personal, covered by professional privilege or concerned persons other than those placed under investigation.

With regard to the investigating judge of the Central Criminal Investigation Court, th ere were no grounds for calling into question his assessment. It was true that, at the material time, he had been the only investigating judge in charge of the most complex cases in Portugal. However, he had intervened in the present case in his capacity a s investigating judge in order to review the lawfulness of the search and seizure operations and in particular to protect legal professional privilege. Furthermore, he had not been empowered to institute an investigation. The allegations against him had no t been sufficiently substantiated to cast doubt on the review he had carried out. Moreover, the examination by the Vice-President of the Court of Appeal had constituted a further safeguard in addition to the review by the investigating judge, and his decis ion had given sufficient reasons on this point. Accordingly, the complaint to the President of the Court of Appeal, in addition to the review by the investigating judge, had constituted an adequate and effective remedy such as to compensate for the scope o f the search warrants.

As to the fact that the computer files and emails had not been handed back, and the use made of them, the legislation did not require them to be returned immediately. Under the domestic law, the file relating to a criminal case in wh ich the investigation had been discontinued could be kept for the duration of the limitation period for the crimes in question. After a second, separate investigation had been opened, the judge of the Central Criminal Investigation Court had authorised the copying of the criminal investigation file and various attachments for inclusion in the new investigation file. The aim of using that evidence had been to continue to search for information concerning the remaining suspects and events without the continua tion of that investigation adversely affecting the persons who were the subject of the first investigation. The reasons given had therefore been legitimate. In the present case the copies requested had related to an investigation closely linked to the inve stigation giving rise to the seizure operation.

Consequently, notwithstanding the scope of the search and seizure warrants, the safeguards afforded to the applicants against abuse, arbitrariness and breaches of legal professional privilege, and in particul ar the review conducted by the investigating judge coupled with the intervention of the President of the Court of Appeal, had been adequate and sufficient. The search and seizure of the computer files and emails complained of in the present case had theref ore not amounted to interference that was disproportionate to the legitimate aim pursued.

Conclusion : no violation (six votes to one).

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

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