DISSENTING OPINION OF JUDGE YUDKIVSKA

I did not vote together with my learned colleagues for a violation of Article 8 of the Convention, not because I found that the legal framework at stake in the present case satisfied the requirements of Article 8 or that the appropriate procedural guarantees existed. In fact, I could have easily subscribed to their reasoning on the merits of the case.

However, I believe that the present application is inadmissible because the applicant was acquitted in the proceedings in which he claimed that his LPP had been violated. Having been acquitted, he can no longer complain of any violation of his fair trial rights – including defence rights that comprised LPP – he has lost victim status. The Court came to this conclusion in paragraph 59 of the judgment.

Having accepted that the applicant might still be a victim of a violation of his LPP, the majority, in my view, ignored the very nature of this privilege.

A lawyer-client privilege cannot be regarded as an autonomous right. That privilege, which is recognised in many international instruments and national legislations, originates from the rights of the defence and is explained – both in the doctrine and in jurisprudence – by the privilege against self-incrimination.

This Court has held many times that confidential communication with one’s lawyer is protected by the Convention as an important safeguard of the right to defend oneself [1] . The lawyer-client privilege protects the integrity of legal representation itself [2] . As noted in the doctrine, this privilege has a “rule of law rationale” [3] and the right to lawyer-client confidentiality is implied by the rights to a fair trial and to legal representation [4] . It is also claimed that “the European Court of Human Rights has made clear its view that confidentiality of communications between the lawyer and client is necessary to guarantee the effectiveness of the right to legal representation” [5] .

The Court has always taken the lawyer-client privilege seriously and scrutinised it meticulously. In § 38 of the Kopp v. Switzerland judgment [6] the Court quoted the opinion of academic writers to the effect that information not specifically connected with a lawyer’s work on instructions from a party to proceedings is not covered by professional privilege [7] . It then concluded that the “sensitive area of the confidential relations between a lawyer and his clients ... directly concern(s) the rights of the defence”.

In Versini-Campinchi and Crasnianski v. France [8] , the transcript of a telephone conversation which the applicant (a lawyer) had had with her client had been used in evidence in disciplinary proceedings against her. The Court found no violation of Article 8 because the domestic courts had satisfied themselves that the transcription had not infringed her client’s defence rights , and the fact that the former was the latter’s lawyer was insufficient to constitute a violation of Article 8 of the Convention. Additionally, in Michaud v. France [9] , the Court concludes that “the lawyer’s defence role ... forms the very basis of legal professional privilege”, which entails that where there has been no violation of the lawyer’s defence role (which can be translated as the applicant’s defence rights), one cannot claim an infringement of LLP. It is thus clear that the lawyer-client privilege is not considered separately from the rights of the defence.

Indeed, the Court has examined many complaints of violations of this privilege. Whenever a complaint concerning such an alleged violation has been submitted by a lawyer, the Court has clearly approached it from the standpoint of Article 8 (see, among many other authorities, Petri Sallinen and others v. Finland ( no. 50882/99, 27 September 2005); Kruglov and others v. Russia ( nos. 11264/04 and 15 others, 4 February 2020); and Golovan v. Ukraine (no. 41716/06, 5 July 2012)). Similar complaints submitted by suspects were mostly examined under Article 6 § 3 (c) of the Convention (see, among other authorities, Khodorkovskiy v. Russia, no. 5829/04, 31 May 2011; Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, 25 July 2013; and M. v the Netherlands, no. 2156/10, 25 July 2017), sometimes under Article 5 § 4 (see Castravet v. Moldova, no. 23393/05, 13 March 2007), and sometimes under Article 8 (see, among other authorities, Piechowicz v. Poland, no. 20071/07, 17 April 2012 , and Sorvisto v. Finland, no. 19348/04, 13 January 2009) – depending on the circumstances and the applicant’s initial classification.

Clearly, the nature of the interference in the lawyer-client privilege is different in cases concerning lawyers and their clients.

Explaining the scope of a lawyer’s professional privilege when his/her premises are being searched and documents seized, the Court stated: “The measures complained of interfered with the first applicant’s professional life: they had repercussions for his reputation as a lawyer and must have affected (his/her) wide range of personal connections...” [10] . It also “attached particular weight to that risk since it may have repercussions on the proper administration of justice ” [11] .

As regards suspects, the Court explained the underlying rationale of the lawyer-client privilege – regardless of whether a relevant complaint was submitted under Article 8 or Article 6 § 3 (c) - by reference to fair trial rights : “One of the key elements in a lawyer’s effective representation of a client’s interests is the principle that the confidentiality of information exchanged between them must be protected. This privilege encourages open and honest communication between clients and lawyers. The Court has previously held, in the context of Articles 8 and 6 , that confidential communication with one’s lawyer is protected by the Convention as an important safeguard of the right to defence ” [12] .

Examining such a complaint under Article 8, the Court recalled that “any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. For that reason, the lawyer-client relationship is, in principle, privileged. ... Indeed, if a lawyer were unable to confer with his client without such surveillance and receive confidential instructions from him, his assistance would lose much of its usefulness...” [13] .

It also summarised its approach in M. v. the Netherlands as follows:

“85. The Court has held that an accused’s right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness ...

86. The Court has also held, in the context of Article 5 § 4, that an interference with the lawyer-client privilege and, thus, with a detainee’s right to defence , does not necessarily require actual interception or eavesdropping to have taken place...

87. The Court has further held, in the context of Article 8 of the Convention, that it is clearly in the general interest that any person who wishes to consult a lawyer should be free to do so under conditions which favour full and uninhibited discussion. It is for this reason that the lawyer-client relationship is, in principle, privileged.”

The original logic of the lawyer-client privilege requires that in the course of proceedings against them suspects are able to communicate freely with their lawyers, without fear of disclosing everything relevant to the advice they are seeking. This privilege is rooted in the privilege against self-incrimination .

The Court underlined this interconnection in § 86, cited above, of M. v. the Netherlands - “an interference with the lawyer-client privilege and, thus , with a detainee’s right to defence ”.

In Mirmotahari v. Norway (dec.) [14] , in which the domestic courts applied the same analogy of Article 205(3) as is at stake in the present case, having the City Court sift out the material before the Prosecution could search it, the Court rejected the applicant’s relevant complaint under Article 8 emphasising, inter alia , that “the applicant has made no allegations to the effect that the adversarial procedure that had initially been practised had to be continued for reasons relating to his own defence ”.

In my view, the same applies to the present applicant’s very specific Article 8 complaint, since the lawyer-client privilege is part and parcel of the rights of the defence .

This would prevent any risk that the filtering of the information – albeit, as found by the majority, in the absence of procedural guarantees - might be effected with the intention of enabling the police to find evidence to be used in the trial against him.

In paragraph 51 of the judgment the majority appears to frame the LPP as an autonomous right, quoting Altay v. Turkey (no. 2) and suggesting that the privilege is not limited to matters relating to pending litigation only, and that individuals who consult a lawyer can reasonably expect their communication to be private and confidential whether in the context of assistance for civil or criminal litigation or in seeking general legal advice. However, this quote from Altay v. Turkey (no. 2) should be seen within the context of that case, which concerned a judicial decision to the effect that an official was to supervise all meetings of a detainee with his lawyer, and the full quote reads: “...not only matters relating to pending litigation but also in reporting abuses they may be suffering through fear of retaliation” (§ 50 of that judgment). Obviously, this is a logical and vitally important position in the circumstances which reflects a role to be played by the lawyer in the initial stages of proceedings when a suspect is detained (see A.T. v Luxemburg, § 64).

These considerations are not applicable to the present case. Mr Saber was an accused person, and he complains of an alleged violation of Article 8 rights in respect of his exchange with his lawyer in the course of criminal proceedings against him. Potentially, this could of course breach his defence rights. But it is the long-standing position of the Court that “an acquitted defendant cannot claim to be a victim of violations of the Convention which, according to him, took place in the course of the proceedings against him (see, among many others, Eur. Comm. HR, No. 13156/87 , Dec. 1.07.1992, D.R. 73, p. 5).

An acquittal renders obsolete any violation of defence rights, including a violation of the lawyer-client privilege.

[1] See Apostu v. Romania , no. 22765/12, § 96, 3 February 2015.

[2] H.L Ho, “Legal Professional Privilege and the Integrity of Legal Representation” (2006), 9(2) Legal Ethics, 174.

[3] Zuckerman, Civil Procedure (2003) at [15.8]-[15.10].

[4] Ho, op. cit., 163.

[5] Ibid., with a reference to Dennis, The Law of Evidence, 5th edn, Sweet & Maxwell, 2013, at p. 397.

[6] Kopp v. Switzerland, 25 March 1998, Reports of Judgments and Decisions 1998-II.

[7] With reference to G. Piquerez, Précis de procédure pénale suisse , Lausanne, 1994, p. 251, no. 1264, and B. Corboz, “ Le secret professionnel de l’avocat selon l’article 321 CP ”, Semaine judiciaire , Geneva, 1993, pp. 85–87.

[8] Versini-Campinchi and Crasnianski v. France , no. 49176/11 , 16 June 2016.

[9] Michaud v. France, no. 12323/11, 06 December 2012.

[10] Golovan v. Ukraine, no. 41716/06 , § 53, 5 July 2012.

[11] Wieser and Bicos Beteiligungen GmbH v. Austria , n o. 74336/01, ECHR 2007-IV, § 65.

[12] See footnote 1.

[13] Piechowicz v. Poland, no. 20071/07, § 239, 17 April 2012.

[14] Mirmotahari v. Norway , no. 30149/19, 8 October 2019.