Published on 12 December 2022

FIFTH SECTION

Application no. 24966/16 UNI LEGAL, ADVOKÁTNÍ KANCELÁŘ, S.R.O. against the Czech Republic lodged on 27 April 2016 communicated on 23 November 2022

SUBJECT MATTER OF THE CASE

The application concerns the seizure and subsequent handover to the police of a large amount of electronic data (millions of documents) belonging to the applicant company, a law firm, in the context of criminal proceedings in which the applicant company acted as a person involved (“ zúčastněná osoba ”). The data, likely containing information protected by lawyer-client privilege, were seized during a search of the premises used for storage of data servers rented by a third person operating these servers for the applicant company. On 9 July 2014 the Prague Municipal Court, without consulting the content of the seized data to identify those which were relevant for the criminal proceedings, ordered their handover on the grounds that the external cloud storage was not a place where an attorney practices law. On 25 June 2015 the Supreme Court (Tpjn 306/2014) unified the then contradictory interpretative practice regarding the legal definition of “other premises in which an attorney practises law” (Article 85b § 1 of the Code of Criminal Procedure), making clear that those premises include any premises which are related to the practice of law, where client information, in written, electronic or other form, can be found, including external cloud storage. On 26 October 2015 the Constitutional Court (I. ÚS 2878/14), upon the applicant company’s constitutional complaint, which was the sole remedy against the handover order, admitted that the legal grounds for the handover order were not correct. Nonetheless, it dismissed the applicant company’s constitutional complaint stating that (i) the subject matter of the [then ongoing] criminal proceedings was a suspected criminal activity of lawyers, (ii) the Municipal Court had ruled on the matter before the Supreme Court unified the relevant judicial interpretative practice, and (iii) the gathered evidence would still be examined by the courts in the context of the [then ongoing] criminal proceedings. The Constitutional Court added that its decision, being guided by the particular circumstances of the case, could not be interpreted as a “ pro futuro licenci ” allowing public prosecution authorities to circumvent their obligation to proceed under Article 85b § 1 of the Code of Criminal Procedure, with the protection of data subject to attorney-client privilege being granted by the court in subsequent proceedings.

The applicant company complains under Article 6 § 1 of the Convention (fair trial) and Article 8 of the Convention (respect for private life, home or correspondence).

QUESTIONS TO THE PARTIES

1. Were the seizure and handover of the applicant company’s electronic data, including those likely to be covered by the confidentiality of exchanges between the applicant company and its clients, ordered by the Municipal Court, and the subsequent decision of the Constitutional Court (I. ÚS 2878/14 of 26 October 2015) dismissing the applicant company’s constitutional complaint, in breach of the applicant company’s right to respect for private life and/or home and/or correspondence, within the meaning of Article 8 of the Convention?

2. In particular, were there adequate, effective and sufficient procedural safeguards to prevent interference with professional secrecy (see Kırdök and Others v. Turkey , no. 14704/12, 3 December 2019; Vinci Construction et GTM Génie Civil et Services v. France , nos. 63629/10 and 60567/10, 2 April 2015; and Wieser and Bicos Beteiligungen GmbH v. Austria , no. 74336/01, ECHR 2007-IV)?