Searches and seizures carried out at a lawyer’s offices or home
II. RELEVANT DOMESTIC LAW AND PRACTICE 1. General conditions for searches and seizures 30. Under the Coercive Measures Act (450/1987) the police may conduct a search, inter alia, if there is reason to suspect that an offence has been committed and provided the maximum sentence applicable exceeds six months'imprisonment ( Chapter 5, section 1). The search warrant is issued by the police themselves. 31. A search may also be conducted on the premises of a person other than the one who is under reasonable ( todennäköinen, sannolik ) suspicion of having committed an offence of the aforementioned nature, provided the offence was committed on those premises or the suspect was apprehended there or if there are very strong reasons for assuming that a search of those premises will produce an object to be seized or other information pertaining to the offence ( Chapter 5, section 2). In order for an object to qualify for seizure there must be a reason to presume that it may serve as evidence in the criminal proceedings, that it may have been removed from someone by a criminal offence or that the court may order its forfeiture ( Chapter 4, section 1). 32. A sealed letter or other private document which has been seized may only be opened by the head of investigation, by the prosecutor or by the court. In addition, only the investigators of the offence in question may examine such a document more closely. However, an expert or other person whose assistance is used in investigating the offence or who is otherwise heard in the case may examine the material, as directed by the head of investigation, by the prosecutor or by the court ( Chapter 4, section 8). 33. Whenever possible, the officer in charge shall call a witness to attend the search. If deemed necessary, the officer may also seek the assistance of an expert or other person ( Chapter 5, section 4, subsection 1). 34. The officer in charge may allow a complainant or his representative to attend a search in order to provide necessary information. The responsible officer must nonetheless ensure that a complainant or representative does not obtain any more information than necessary through the search ( Chapter 5, section 4, subsection 3). 35. According to section 40 of the Pre-trial Investigation Act, only such evidence as may be considered relevant in the case shall be placed on record. 36. As regards other evidence, it is the respondent Government's view that a police officer is under an obligation to respect the confidentiality requirement stipulated by section 17 of the Civil Servants Act ( valtion virkamieslaki, statstjänstemannalagen 750/94 ). 37. Section 8 of the Pre-Trial Investigation Act ( esitutkintalaki, förundersökningslagen 449/1987) stipulates that in an investigation no one's rights shall be infringed any more than necessary for the achievement of its purpose. No one shall be placed under suspicion without due cause and no one shall be subjected to harm or inconvenience unnecessarily. 38. Chapter 7, section 1 a, of the Coercive Measures Act provides that only such measures may be used which can be deemed justified in light of the seriousness of the offence under investigation, the importance of the investigation and the degree of interference with the rights of the suspect or other persons subject to the measures, as well as in light of any other pertinent circumstances. 39. According to Chapter 4, section 11, a seizure shall be lifted as soon as it is no longer necessary. If charges have not been brought within four months of the seizure the court may extend it at the request of a police officer competent to issue arrest warrants. 2. Particular conditions in respect of privileged material 40. Chapter 4, section 2, subsection 2 of the Coercive Measures Act provides that a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person referred to in Chapter 17, section 23, of the Code of Judicial Procedure is not allowed to give evidence at a trial and provided that the document is in the possession of that person or the person for whose benefit the secrecy obligation has been prescribed. A document may nevertheless be seized if, under section 27, subsection 2 of the Pre-Trial Investigation Act, a person referred to in Chapter 17, Article 23, of the Code of Judicial Procedure would have been entitled or obliged to give evidence in the pre-trial investigation about the matter contained in the document. 41. Under Chapter 17, section 23, subsection 1 of the Code of Judicial Procedure counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case, unless the client consents to such testimony. Although subsection 3 provides for an exception to this secrecy obligation if the charges concern an offence carrying a minimum sentence of six years'imprisonment (or attempting or aiding and abetting such an offence), this exception does not extend to counsel for an accused. 42. Under section 5 c (626/1995) of the Advocates Act ( laki asianajajista, lagen om advokater ) an advocate or his assistant shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. Breach of this confidentiality obligation shall be punishable in accordance with Chapter 38, section 1 or 2, of the Penal Code ( rikoslaki, strafflagen ), unless the law provides for a more severe punishment on another count. 43. In their book “Pre-trial investigation and coercive measures” ( Esitutkinta ja pakkokeinot, Helsinki, 2002) Klaus Helminen, Kari Lehtola and Pertti Virolainen state (at page 742) that in the legal literature and in police practice a principle has been consistently followed whereby a search may not be performed in order for investigators to obtain documents that are subject to a seizure prohibition. 44. The Ministry of Justice appointed a Working Group on Internet Aided Crimes ( tietoverkkorikostyöryhmä, arbetsgruppen för IT brottslighet ) which also considered the question of searches and seizures of computer files and computers by the police. On June 2003 the Working Group issued a report, which was sent out for comments to various interest groups and experts. On the basis of the working group's report and the comments given, the Ministry of Justice is expected to prepare a government bill. 3. Remedies 45. Chapter 4, section 13, of the Coercive Measures Act provides that at the request of a person whom the case concerns the court shall decide whether the seizure shall remain in force. A request which has been submitted to the court before its examination of the charges shall be considered within a week from its reception by the court. The court shall provide those with an interest in the matter an opportunity to be heard, but the absence of anyone shall not preclude a decision on the issue. A decision reviewing a seizure is subject to a separate appeal. 46. According to section 118, subsection 3 of the Constitution ( perustuslaki, grundlagen 731/1999) everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function shall have the right to request that the civil servant or other person in charge of the public function be sentenced to a punishment and that the public organisation, official or other person in charge of a public function be held liable for damages, as provided in more detail by an Act. This section is equivalent to section 93 of the repealed Constitution Act of Finland of 1918 ( Suomen Hallitusmuoto, Regeringsform för Finland ), as in force at the relevant time. 47. Until 31 December 1998, Chapter 24, section 2 of the Penal Code provided that if a search of premises was carried out by someone lacking the authority to do so, or if someone having such authority carried it out in an unlawful manner, he or she was to be sentenced to a fine or to imprisonment for a maximum of one year. According to Government Bill no. 6/1997, the provision was proposed to be repealed as “in cases where the above-mentioned act is committed by a public official in the performance of his or her official duties, Chapter 40, section 10 is applicable”. 48. Chapter 40, section 10, subsection 1 of the Penal Code provides that if a public official, when acting in his office, intentionally in a manner other than that provided above in this Chapter violates or neglects to fulfil his official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for violation of official duties to a fine or to imprisonment for at most one year. 49. Chapter 40, section 11 of the Penal Code provides that if a public official, when acting in his office, through carelessness or lack of caution, in a manner other than that referred to in section 5, subsection 2, violates or neglects to fulfil his or her official duty based on the provisions or regulations to be followed in official functions, and the act, when assessed as a whole, taking into consideration its detrimental and harmful effect and the other circumstances connected with the act, is not petty, he shall be sentenced for a negligent violation of official duties to a warning or to a fine. 50. According to Chapter 1, section 14 of the Criminal Procedure Act ( laki oikeudenkäynnistä rikosasioissa, lag om rättegång i brottmål 689/1997), an injured party may bring a private prosecution only if the public prosecutor has decided not to press charges. 51. Under the 1974 Damage Compensation Act ( vahingonkorvauslaki, skadeståndslagen 412/1974) proceedings may be brought against the State in respect of damage resulting from fault or neglect by its employees in the performance of their duties ( Chapters 3 and 4). C. Council of Europe recommendation 52. Recommendation (2000) 21 of the Committee of Ministers to member states on the freedom of exercise of the profession of lawyer provides, inter alia, as follows: “Principle I - General principles on the freedom of exercise of the profession of lawyer ... 6. All necessary measures should be taken to ensure the respect of the confidentiality of the lawyer-client relationship. Exceptions to this principle should be allowed only if compatible with the rule of law. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 57. The applicants complained that the search and seizure of privileged material had breached Article 8 of the Convention, which provides : “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. The parties'submissions 1. The applicants 58. The first applicant complained under Article 8 of the Convention that the search and seizure of privileged material violated his right to respect for his private life, home and correspondence. Apart from documents relating to his clients'instructions, his private notes and electronic messages were also seized. 59. The applicants nos. 1-3 and 8 complained that the search and seizure, including the retention by the police of a copy of the fourth hard disk violated their right to respect for their private life, family life and correspondence. The other applicants complained that the search and the short-term seizure which the police revoked of its own motion violated their right to respect for their private life, family life and correspondence. 60. The applicants did not base their complaint on the possibility that the police might have used the information obtained through the search. They argued that their uncertainty in this respect must be taken into account in assessing the compatibility of the search with the requirements of Article 8. 61. In so far as the seizure extended to material containing information in respect of which the first applicant was not allowed to testify, the applicants alleged that it was not in accordance with domestic law. In so far as the search sought to obtain such material for seizure, that interference was likewise in breach of domestic law. They referred to Chapter 4, section 2 of the Coercive Measures Act, which obliges the police to show circumspection when conducting a seizure. They argued that since a search may only be performed to find potentially admissible evidence the police are not authorised by law to conduct a search if the purpose is to find a document which is arguably of a privileged character. 62. The applicants further argued that in the present circumstances the assistance which the tax inspector and enforcement official provided during the search raised a further question under Article 8. Further, the police did not fully respect its duty of secrecy as it disclosed some of that material in its appeal to the Court of Appeal. 63. The applicants concluded that Finnish practice in coercive measures was very deficient in terms of oversight and legal safeguards. In the present case the authorities did not adhere to the procedure recommended in the legal literature. The applicants noted that in Finland no provision was made for involving an appointed representative of the Bar in any search and seizure of material relating to a member's practice. 2. The Government 64. The Government submitted that in respect of the first applicant, a search performed in his office may have constituted an interference within the meaning of Article 8 of the Convention. As regards the client applicants, the Government noted that correspondence with a lawyer falls under the protection of Article 8. However, the Government contested that there were any interference with the client applicants'rights. The Government argued that the applicants had not sufficiently substantiated their allegation that the retained copy of the fourth hard disk contained material which was unrelated to the offence under investigation. Furthermore, even if the disk did contain any material irrelevant to the investigated offence, that material could not have been used by the police. 65. Were the Court to find that there was an interference with the right protected under Article 8, the Government noted that the first applicant was suspected of aggravated debtor's fraud and of aiding and abetting aggravated debtor's dishonesty. As the maximum penalty for an aggravated debtor's fraud is four years'imprisonment the search and seizure were in accordance with the law. In the Government's view a lawyer suspected of a severe offence cannot be treated differently from other suspects. The search and the seizure were carried out with a view to investigating a serious offence, which justified the interference with the privileged client-lawyer relationship. 66. As regards the other applicants, the Government referred to section 34 of the Police Act, under which information concerning exclusively a person unrelated to the investigation shall be destroyed without delay, unless the material is needed for the investigation of the offence. They further noted that the police often resorted to the expertise of tax inspectors when investigating matters relating to accounting. Subject to the instructions given by the head of the investigation, such an expert or assistant could examine a sealed letter or other document. The impugned measures were therefore in accordance with law also in this respect. 67. The Government further opined that the interference pursued the legitimate aim of preventing crime and protecting the rights and freedoms of others. The measures were proportionate to those aims, corresponded to a pressing social need and were accompanied by adequate and effective safeguards. They argued that it was necessary for the police to examine all of the material in the first applicant's office in order to find out which part of it was relevant to the investigation of the offence. The hard disks were subjected to a targeted search and only the potentially relevant client files in the law office were perused. The reason for retaining a copy of the fourth hard disk was thoroughly explained and reviewed in the national proceedings, and was relevant and sufficient also for the purposes of Article 8 § 2. Moreover, police officers were under an obligation to respect confidentiality. B. The Court's assessment 1. Whether there was an interference 68. The first applicant claimed that the search of his business and residential premises and the seizure of several documents had interfered with his right to respect for his private life, home and correspondence as guaranteed by Article 8 § 1. In this respect, the Government agreed that a search may have constituted an interference. 69. The client applicants claimed that the search and seizure of privileged material interfered with their rights under Article 8 of the Convention. The Government contested the other applicants'view, arguing that even though the correspondence with a lawyer falls under the protection of Article 8, there had not been any interference with their rights within the meaning of Article 8 of the Convention. 70. The Court would point out that, as it has now repeatedly held, the notion of “home” in Article 8 § 1 encompasses not only a private individual's home. It recalls that the word “ domicile ” in the French version of Article 8 has a broader connotation than the word “home” and may extend, for example, to a professional person's office. Consequently, “home” is to be construed as including also the registered office of a company run by a private individual, as well as a juristic person's registered office, branches and other business premises (see, inter alia, Buck v. Germany, no. 41604/98, § 31, 28 April 2005, Chappell v. the United Kingdom, judgment of 30 March 1989, Series A no. 152-A, pp. 12-13 and 21-22, §§ 26 and 51; Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, §§ 2 9 - 31). 71. In the present case, the searches and seizure ordered by the police concerned, inter alia, the law office owned and managed by the first applicant. The search warrants were issued by the officer in charge of the police investigation, in which the first applicant was first considered as a witness, but the second search warrant was based on the suspicion that he was suspected of having aided and abetted an offence of aggravated debtor's fraud allegedly committed by two of his clients (who are not applicants before the Court). It is undisputed that the police had copied a hard disk from one of the first applicant's computers and that the copy was kept by the police until a final court decision. The Court finds that the search by the police of the residential premises and the business premises of the first applicant, and the seizure of hard disks there, amounted to an interference with the right to respect for the first applicant's “home” and “correspondence”, as those terms have been interpreted in the Court's case- law ( Niemietz, cited above, § 30). It follows that the search and seizure also amounted to an interference with the right to respect for the client applicants'“correspondence” (see Niemietz, cited above, § 32). 72. Consequently, the Court finds it unnecessary to determine whether, as it has found in several comparable cases (see, inter alia, Chappell, cited above, § 51; Niemietz, cited above, §§ 29-31), there has also been an interference with the applicants'right to respect for their private life as guaranteed by Article 8 § 1. 73. The Court must therefore examine whether this interference was in conformity with the requirements of the second paragraph of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve the aim or aims in question. Was the interference justified (a) Was the interference” in accordance with the law”? 74. The parties disagreed as to the description of domestic law. The applicants maintained that the search warrant was not in accordance with domestic law, as Chapter 4, section 2 of the Coercive Measures Act required the police to show circumspection when a lawyer was involved in the seizure. They further maintained that since a search could only be performed to find something which could be seized and used as evidence ( see Coercive Measures Act, Chapter 5, section 1), the police were not authorised under the law to conduct a search if the purpose was to find a document in respect of which an evidential or seizure prohibition might be applied. 75. The Government contested this view, arguing that according to Chapter 5, section 1 of the Coercive Measures Act, a search could be carried out in order to seize an object which might be relevant in investigating an offence for which a penalty of more than six months'imprisonment was provided. In the present case where the first applicant was suspected of aggravated debtor's fraud and of aiding and abetting an offence of aggravated debtor's dishonesty, the search and seizure had been carried out for the purposes of investigating such a serious offence, which they submitted justified any interference with the confidentiality of the client-lawyer relationship that would normally enjoy special protection. In the Government's view, it was of no relevance in this context that the first applicant was a lawyer and that the search was carried out in his office. As regards the other applicants, the Government submitted that, according to section 34 of the Police Act, information exclusively concerning third parties had to be destroyed after review without delay, unless it was needed for the investigation of the offence. In their view, the impugned measures were in accordance with the law also in this respect. 76. The Court notes that the expression “in accordance with the law”, within the meaning of Article 8 § 2 requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see eg. Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998 ‑ II, § 55). – Whether there was a legal basis in Finnish law 77. The Court recalls that in accordance with the case-law of the Convention institutions, in relation to Article 8 § 2 of the Convention, the term “law” is to be understood in its “substantive” sense, not its “formal” one. In a sphere covered by written law, the “law” is the enactment in force as the competent courts have interpreted it (see, inter alia, Société Colas Est and Others v. France, no. 37971/97, § 43, ECHR 2002 ‑ III ). In this respect, the Court reiterates that its power to review compliance with domestic law is limited, it being in the first place for the national authorities, notably the courts, to interpret and apply that law (see, inter alia, Chappell, cited above, p. 23, § 54). 78. In principle, therefore, it is not for the Court to express an opinion contrary to that of the domestic courts, which found that the search and seizure were based on the Coercive Measures Act and the Code on Judicial Procedure. 79. In short, the interference complained of had a legal basis in Finnish law. – “Quality of the law” 80. The second requirement which emerges from the phrase “in accordance with the law” – the accessibility of the law – does not raise any problem in the instant case. 81. The same is not true of the third requirement, the “foreseeability” of the meaning and nature of the applicable measures. 82. The Court reiterates in that connection that Article 8 § 2 requires the law in question to be “compatible with the rule of law”. In the context of searches and seizures, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights. Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such measures (see mutatis mutandis, Kopp v. Switzerland, judgment of 25 March 1998, Reports of Judgments and Decisions 1998 ‑ II, p. 541, § 64. 83. The Court must examine the “quality” of the legal rules applicable to the applicants in the instant case. 84. The Court notes in the first place that under the Coercive Measures Act, Chapter 4, section 2, subsection 2, a document shall not be seized for evidential purposes if it may be presumed to contain information in regard to which a person is not allowed to give evidence. 85. Under Code of Judicial Procedure, Chapter 15, section 23, counsel may not testify in respect of what a client has told him or her for the purpose of pleading a case. 86. Under the Advocates Act, section 5 c, an advocate shall not without due permission disclose the secrets of an individual or family or business or professional secrets which have come to his knowledge in the course of his professional activity. 87. On the face of the above-mentioned provision of the Code of Judicial Procedure, the Court finds the text unclear as far as it concerns confidentiality. The above-mentioned domestic law does not state with the requisite clarity whether the notion of “ pleading a case ” covers only the relationship between a lawyer and his/her clients in a particular case or their relationship generally. The Court refers to a lawyer's general obligation of professional secrecy and confidentiality. In this respect the Court refers to the Recommendation (REC 2000/21) of the Committee of Ministers, according to which States should take all necessary measures to ensure the respect of the confidentiality of the client-lawyer relationship. 88. The Government sought to resolve this by noting that in any case, the search and seizure were carried out for the purposes of investigation of a serious offence. A lawyer suspected of a severe crime could not, on their view, be treated differently from other suspects. 89. The Court, however, is not persuaded by this argument. In the present case, hard disks were searched, copied and seized. They contained information passing between the first applicant and his clients, who had no role in the investigated offence. While the seized hard disks were returned to the first applicant, however, a copy of the fourth hard disk remained with the police for some considerable time. The Court notes that the search and seizure were rather extensive and is struck by the fact that there was no independent or judicial supervision. 90. The Court would emphasise that search and seizure represent a serious interference with private life, home and correspondence and must accordingly be based on a “law” that is particularly precise. It is essential to have clear, detailed rules on the subject. 91. In that connection, the Court notes that the relationship between the Coercive Measures Act, the Code of Judicial Procedure and the Advocates Act (read together) was somewhat unclear and gave rise to diverging views on the extent of the protection afforded to privileged material in searches and seizures, a situation which was identified also by the Deputy Chancellor of Justice of Finland. 92. In sum, the Court finds that the search and seizure measures in the present case were implemented without proper legal safeguards. The Court concludes that, even if there could be said to be a general legal basis for the measures provided for in Finnish law, the absence of applicable regulations specifying with an appropriate degree of precision the circumstances in which privileged material could be subject to search and seizure deprived the applicants of the minimum degree of protection to which they were entitled under the rule of law in a democratic society (see, mutatis mutandis, Narinen v. Finland, no. 45027/98, § 36, 1 June 2004 ). 93. The Court finds that in these circumstances it cannot be said that the interference in question was “in accordance with the law” as required by Article 8 § 2 of the Convention. 94. There has therefore been a violation of Article 8 of the Convention. (b ) Purpose and necessity of the interference 95. Having regard to the above conclusion, the Court does not consider it necessary to review compliance with the other requirements of Article 8 § 2 in this case (see e.g. Kopp, cited above, § 76). II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 96. The client applicants complained that the search and perusal of privileged material had breached Article 6 of the Convention, which provides: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing ....” A. The parties'submissions 1. The applicant 97. The client applicants complained under Article 6 of the Convention and notably under § 3 (b) and (c) that the search and perusal of privileged material relating to their respective instructions violated their right to a fair hearing and an effective defence. Some of the applicants had instructed the first applicant to assist them in criminal proceedings in which the police investigation had been conducted by officers also participating in the search. 98. As the same fairness guarantees in principle also apply prior to the actual court proceedings as well as in other than criminal proceedings, the search and seizure also violated the rights under Article 6 of those client applicants who had not already been charged at that moment. A situation whereby public officials can study privileged material relating to cases not yet heard by the courts and other authorities waters down the guarantee of equality of arms between the parties. 99. The applicants relied on the wholesale character of the coercive measures, which were conducted without resorting to the assistance of an independent counsel appointed by the Bar Association, as recommended in the legal literature. 2. The Government 100. The Government accepted that in theory where a lawyer is involved in a search, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6. In the present case however it was necessary for the police to examine all of the material in the first applicant's office in order to identify those of relevance to the investigation. Only those documents were examined more closely and under domestic law no other material was to be entered into the investigation record. The police officers were – and remain – under an obligation to respect confidentiality. Moreover, officials who obtain information in the context of a seizure are not allowed to use that information for purposes other than a criminal investigation. 101. The Government considered unsubstantiated the applicants'allegation that information gleaned from the seized material was being used against the applicants in other proceedings. B. The Court's assessment 102. In view of the above finding of a violation of Article 8 based on the lack of foreseeability of the domestic law the Court considers that in the circumstances of this case there is no need to examine separately the additional complaints under Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 103. The applicants complained that the lack of effective remedy against the interference had breached Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties'submissions 1. The applicant 104. The applicants complained under Article 13 of the Convention that they had no effective remedy against the interference (search) other than the possibility of seeking a review of the lawfulness of the seizure. Even if the District Court did order the seizure to be revoked in response to such a request, that decision was overturned on appeal before the copied hard disk could be restored. Even assuming that the applicants had been successful in having that copy restored, the police had had ample time to peruse the documents thereon. 105. They maintained that as Finnish law stood at the time there seemed to be no effective remedy against the revelation of confidential information. 2. The Government 106. The Government reiterated that, according to section 118 of the Constitution, everyone who has suffered a violation of his or her rights or sustained loss through an unlawful act or omission by a civil servant or other person performing a public function may bring charges against a civil servant or other person in charge of a public function, and also claim damages. Moreover, the Tort Liability Act also entitles an individual to institute proceedings against investigative authorities or against a court of law, before a district court, on the ground that he or she has suffered damage due to the performance of a public function. 107. Finally, anyone affected by a seizure may challenge its lawfulness before a court of law under Chapter 4 section 13 of the Coercive Measures Act, as was done by four of the applicants. One may also petition the Ombudsman or the Chancellor of Justice or the regional or supreme police command of the Ministry of the Interior. 108. As regards the destruction of property which has allegedly been seized unlawfully, including copies made of seized documents, the person affected by the seizure may request a court to issue a civil law order, whereby the investigative authorities are placed under an obligation to destroy the said material. B. The Court's assessment 109. The Court recalls that the applicants complained in essence about the search and seizure of privileged material. 110. In view of the submissions of the applicant in the present case and of the grounds on which it has found a violation of Article 8 of the Convention, the Court considers that there is no need to examine separately the complaints under Article 13 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 111. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 112. Under the head of non-pecuniary damage the applicants asked the Court to award each of the 18 applicants 2,500 euros (EUR), totalling EUR 45,000, for suffering and distress resulting from the alleged violations. 113. The Government found the sum claimed for non-pecuniary damage excessive. In their view, the mere finding of a violation would suffice for the client applicants. In the case of the first applicant, the amount to be awarded should not exceed EUR 2,000. 114. The Court accepts that the first applicant has certainly suffered non-pecuniary damage – such as distress and frustration resulting from the search and seizure – which is not sufficiently compensated by the findings of violation of the Convention. The Court awards the first applicant EUR 2, 500 under this head, whereas it considers that the finding of a violation of Article 8 constitutes sufficient just satisfaction for the client applicants. B. Costs and expenses 115. The applicants requested reimbursement of the balance of the legal expenses incurred by them in the Supreme Court by EUR 870.65, including value-added tax ( VAT). The Supreme Court awarded those applicants who were part of the proceedings before the Supreme Court EUR 3,500 for costs and expenses. This was EUR 870.65 less than the costs incurred. 116. They also claimed the reimbursement of their legal costs and expenses incurred in the proceedings before this Court, amounting to EUR 6,135.84 (including VAT). 117. The Court recalls that the established principle in relation to domestic legal costs is that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress the breach of the Convention, to the extent that the costs are reasonable as to quantum (see, for example, I.J.L., G.M.R. and A.K.P. v. the United Kingdom ( Article 41 ), nos. 29522/95, 30056/96 and 30574/96, § 18, 25 September 2001). It finds that the proceedings brought by the applicants nos. 2-3 and 8 against the seizure may be regarded as incurred to redress the breach of Article 8 of the Convention complained of by the applicants. The Court observes that in the Supreme Court's judgment of 18 October 2002 it was mentioned that the said applicants requested reimbursement of their legal expenses before the domestic proceedings. Having regard to all the circumstances, the Court awards the applicants nos. 2-3 and 8 EUR 870. 118. As for the proceedings before this Court the applicants'bill of costs and expenses of 26 January 2004 totalled EUR 6, 135.84 (including VAT). Having regard to all the circumstances, the Court awards the applicants EUR 6 ,000 under this head. C. Default interest 119. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 8 of the Convention, finding that the interference complained of had not been in accordance with the law. In this regard, it considered in particular that Finnish law had not provided proper legal safeguards, in that it was unclear about the circumstances in which privileged material could be subject to search and seizure.