Seizure of smart phone and search of its mirror image copy
RELEVANT LEGAL FRAMEWORK AND PRACTICE The Code of Criminal Procedure 29. The 1981 Code of Criminal Procedure ( straffeprosessloven ), as in force at the relevant time, included the following provisions: Article 119 “Without the consent of the person entitled to the preservation of secrecy, the court may not receive any statement from clergymen in the state church, priests or pastors in registered religious communities, lawyers, defence counsel in criminal cases, conciliators in matrimonial cases, medical practitioners, psychologists, chemists, midwives or nurses about anything that has been confided to them in their official capacity. ... This prohibition no longer applies if the statement is needed to prevent an innocent person from being punished. ...” Article 203 “Objects that are deemed to be significant as evidence may be seized until a legally enforceable judgment takes effect. The same applies to objects that are deemed to be liable to confiscation or to a claim for surrender by an aggrieved person. ...” Article 204 “Documents or any other items whose contents a witness may refuse to testify about under Articles 117 to 121 and 124 to 125, and which are in the possession either of a person who can refuse to testify or of a person who has a legal interest in keeping them secret, cannot be seized. In so far as a duty to testify may be imposed in certain cases under the said provisions, a corresponding power to order a seizure shall apply. The prohibition in the first paragraph does not apply to documents or any other items that contain confidences between persons who are suspected of being accomplices to the criminal act [in question]. Nor does it prevent documents or any other items being removed from an unlawful possessor to enable them to be given to the person entitled thereto.” Article 205 “A decision relating to the seizure of an object that the possessor will not surrender voluntarily may be taken by the prosecuting authority. The decision shall as far as possible be in writing and specify the nature of the case, the purpose of the seizure, and what it shall include. An oral decision shall as soon as possible be rendered in writing. The provisions of Article 200, first paragraph, shall apply correspondingly. When the prosecuting authority finds that there are special grounds for doing so, it may bring the question of seizure before a court. The provisions of the second to the fourth sentences of the first paragraph of this Article and of Article 209 shall apply correspondingly to the court’s decision relating to seizure. The provisions of the first and third paragraphs of Article 208 shall also apply when seizure has been decided on by the court pursuant to this paragraph. Documents or any other item in respect of which the possessor is not obliged to testify except by special court order may not be seized without a court order unless such a special order has already been made. If the police wish to submit documents to the court for a decision as to whether they may be seized, the said documents shall be sealed in a closed envelope in the presence of a representative of the possessor.” Article 208 “Any person who is affected by a seizure may immediately or subsequently demand that the question of whether it should be maintained be brought before a court. The prosecuting authority shall ensure that any such person shall be informed of this right. The provision of the first sentence of the first paragraph shall apply correspondingly when any person who has voluntarily surrendered any object for seizure demands that it be returned. The decision of the court shall be made by an order.” The Supreme Court’s decision of 16 January 2017 30. In its decision of 16 January 2017, the Supreme Court considered the procedures governing the search of an extensive collection of e-mails collected from an accused person. After deciding on the specific case before it, the Supreme Court proceeded to attempt a general clarification of how, in procedural terms, to deal with situations where the police were examining seized data, only to discover that they included correspondence with lawyers. 31. The Supreme Court stated that counsel in the case before it had argued that if the police, when perusing data items, came across correspondence with lawyers, the perusal would have to cease immediately and all items on the data carriers in question would have to be transmitted to the City Court so that that court could separate the data which were exempt from seizure from those which could be searched by the prosecuting authority and possibly seized, should they be found to contain evidence of interest. Counsel had further submitted that the latter procedure would also have to be followed where the accused person claimed that the materials collected included data that were exempt from seizure. 32. The Supreme Court disagreed with counsel’s submissions. In the Supreme Court’s view, one could not set out as a general rule that any discovery of data exempt from seizure, or any claim that such data existed among those collected, would always automatically ( uten videre ) lead to the prosecuting authority having to discontinue its perusal of the collected data. 33. Reference was made to the fact that the primary competence to decide on seizures lay with the prosecuting authority. It was, accordingly, the prosecuting authority which had the primary responsibility for ensuring that no seizure was ordered beyond what was authorised in the Code of Criminal Procedure. From this it was inferred that the prosecuting authority also had first of all to have powers to examine any data collected; it was an evident precondition, however, that in so doing the prosecuting authority would filter out and return or delete whatever data it could not lawfully keep. 34. The preparatory works to the Code of Criminal Procedure had stated that when carrying out a search the police had to look through documents in order to be able to take a decision on whether they should be seized, and that it was unavoidable that the police in that context might happen to look through documents that would be exempt from seizure. 35. The Supreme Court reiterated that in its decision of 27 March 2013 (Rt-2013-968) it had found that the aforementioned statements in the preparatory works could not apply to a situation where a lawyer’s office was being searched and where the lawyer had maintained that documents in the office were subject to legal professional privilege. In such circumstances there would be a presumption that documents and other data were subject to confidentiality and should therefore be submitted to the City Court without any prior perusal or filtering. 36. In the Supreme Court’s view, however, the procedure established in respect of searches and seizures of data in lawyer’s offices was not to be transposed to any situation where lawyer’s correspondence was discovered as part of a larger collection of data or where someone alleged that the data that had been collected comprised such correspondence. In such situations, it was, according to the Supreme Court, more natural to apply procedures based on the guidelines which it had drawn up with regard to conversations recorded during surveillance. 37. Specifically, in its decision of 27 January 2015 (Rt-2015-81), the Supreme Court had indicated that in situations where the prosecuting authority, when reviewing surveillance data, became aware that a conversation involved or might involve a lawyer and his or her client, it could not itself listen through the conversation or read through transcripts of it in order to assess whether the conversation was subject to LPP. The Supreme Court found in that case that a system which entailed that the data at issue in such circumstances had to be sent to the regional court for examination would be compatible with Article 8 of the Convention. It did not pronounce on whether other types of filtering arrangements could be put in place meeting the requirements of that provision. 38. Returning to the case before it concerning e-mails, the Supreme Court assumed that an arrangement for filtering out data covered by LPP based on the guidelines drawn up on surveillance data in the above-mentioned decision would meet the requirements deriving from this Court’s case-law under Article 8 of the Convention. If one accepted that the police were the first to peruse the data in question, the domestic courts’ task would be limited to examining the data submitted to them by the police. 39. The Supreme Court refrained from commenting on how the police could sort the data, either in the case before it or in general, beyond pointing out that criteria for searching the data should be chosen in cooperation with counsel for the defence or counsel appointed to safeguard the interests of persons unaware that a search was being carried out, when a procedure to the latter effect was carried out. 40. Lastly, the Supreme Court stated that the existing legal regulation was not suited to technological developments which facilitated the seizure of large batches of data saved, for example, on computers, mobile phones and memory sticks. The Supreme Court noted that some of the difficulties had been commented on in the preparatory works relating to a proposal of a new Criminal Code, and in its view a more detailed regulation appeared pertinent ( synes nærliggende ). THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 41. The applicant complained that allowing the police to carry out an introductory examination of his smart phone in order to filter out data which might be exempt from seizure due to LPP, entailed a breach of Article 8 of the Convention, which reads: “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.” The parties’ submissions 42. The Government accepted that search and seizure of the applicant’s smart phone had amounted to an interference with his right to respect for his correspondence under Article 8 of the Convention. 43. As to whether the interference had been in accordance with the law, the Government maintained that the search and seizure had had a formal basis in the Code of Criminal Procedure and that the law had been accessible and foreseeable to the applicant. The relevant provisions of the Code of Criminal Procedure had been formulated with sufficient precision. Although the relevant legislation had not been applied as it was in the instant case until the Supreme Court’s decision of 16 January 2017, the procedures described in that decision had not contradicted any earlier Supreme Court rulings. Legal interpretation developed through case-law, and it was essential for national courts to be able to facilitate such development in order to ensure that the law was applied correctly to cases not specifically dealt with in the relevant legislation. This held especially true in a case such as the present one, where the legislation did not deal with the issue at hand owing to technological developments unforeseen by the lawmakers. 44. Furthermore, the Government argued that the search and seizure of the applicant’s smart phone had pursued the legitimate aim of preventing disorder and crime and had been necessary in order to obtain evidence in the criminal investigation in which the applicant was the aggrieved party. They also submitted that the Code of Criminal Procedure contained adequate and effective safeguards against abuse in respect of decisions to search as well as to seize objects. The preliminary filtering and deletion of LPP data had been carried out by a police officer who had not been involved in investigating the instant case. 45. The applicant submitted that the Supreme Court’s decision in the present case represented a departure from well-established practice in terms of filtering out data subject to LPP, such that he could not to a reasonable degree foresee the consequences; nor had the law been accessible to him. 46. Furthermore, the applicant argued that the impugned measure was not necessary in a democratic society because the relevant legislation and practice had not afforded the applicant adequate and effective safeguards against abuse. The applicant maintained that the case concerned not judicial authorisation before a seizure but the procedure regarding the seizure of a batch of data partly made up of information exempt from seizure, and how to filter that information out. Admissibility 47. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 48. The Court observes at the outset that it is undisputed between the parties that the search of the applicant’s smart phone and/or the mirror image copy of it, entailed an interference with his right to respect for his correspondence under the first paragraph of Article 8 of the Convention, and considers that this cannot be called into question (see for example, mutatis mutandis, Laurent v. France, no. 28798/13, § 36, 24 May 2018). Moreover, the Court notes that the search was carried out towards the applicant in his capacity of being the aggrieved party in the pertinent investigation (see paragraph 5 above). 49. As to the question of whether the interference was in accordance with the law under the second paragraph of that provision, the Court observes that the decisions relating to the search as such, and ultimately any seizure of data from the applicant’s smart phone, had a formal basis in law, namely in the provisions on searches in Chapter 15 and those on seizures in Chapter 16 of the Code of Criminal Procedure (see paragraph 29 above). In so far as it had been established that access to correspondence between the applicant and his lawyers could be obtained via the mirror image copy of his smart phone, the crux of the case is, however, whether the law in question had sufficient quality and offered sufficient safeguards to ensure that LPP was not compromised during the search and seizure procedure. 50. In that context, the Court reiterates that Article 8 § 2 of the Convention 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 and conditions under which public authorities are empowered to resort to any such measures. Moreover, 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 (see Sallinen and Others v. Finland, no. 50882/99, §§ 82 and 90, 27 September 2005). 51. Furthermore, the Court has acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyers and their clients and of LPP (see, inter alia, Sommer v. Germany, no. 73607/13, § 56, 27 April 2017, and Michaud v. France, no. 12323/11, § 130, ECHR 2012). It has emphasised that professional secrecy is the basis of the relationship of trust existing between a lawyer and his client and that the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer’s client not to incriminate himself, which presupposes that the authorities seek to prove their case without resorting to evidence obtained through methods of coercion or oppression in defiance of the will of the “person charged” (see, for example, André and Another v. France, no. 18603/03, § 41, 24 July 2008). However, in its case-law, the Court has distinguished between the question of whether Article 8 has been violated in respect of investigative measures and the question of possible ramifications of a finding to that effect on rights guaranteed under Article 6 (see, for example, among many other authorities, Dragoș Ioan Rusu v. Romania, no. 22767/08, § 52, 31 October 2017; and Dumitru Popescu v. Romania (no. 2), no. 71525/01, § 106, 26 April 2007, with further references). Moreover, the Court has stressed 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 and that it is for that reason that the lawyer-client relationship is, in principle, privileged. It has not limited that consideration to matters relating to pending litigation only and has emphasised that, whether in the context of assistance for civil or criminal litigation or in the context of seeking general legal advice, individuals who consult a lawyer can reasonably expect that their communication is private and confidential (see, for example, Altay v. Turkey (no. 2), no. 11236/06, §§ 49-51, 9 April 2019, and the references therein). 52. Proceeding to the circumstances of the instant case, the Court first of all observes that there was agreement that the mirror image copy of the applicant’s smart phone contained correspondence between him and his lawyers (see paragraph 6 above). It also observes that the Code of Criminal Procedure did not include any express provisions originally designed to prescribe the procedure for such situations in which LPP could be at stake. There was however initial common ground between the police and the applicant that in order to ensure that LPP was not compromised, the data on the mirror image copy had to be sifted out by the City Court and any LPP data removed before the police could search the remainder. The legal basis for that procedure would be an application by analogy of Article 205 § 3 of the Code of Criminal Procedure (see paragraphs 6 and 29 above). The City Court appears to have shared this understanding and proceeded accordingly in order to have the filtering carried out (see paragraphs 6-7 above). Nonetheless, there was, in the absence of any express and specific rules on the matter, subsequent disagreement as to how the City Court could go about it in practical terms, including whether it could seek assistance from the police (see paragraphs 8-11 above). 53. Thereupon, while the City Court was proceeding to sift out the LPP data in the applicant’s case, the Supreme Court gave a decision in an entirely unrelated case in which the applicant had played no part, which indicated that it was – contrary to the assumptions of the applicant, the police and the City Court – in fact the police itself that should filter the data, seemingly because the Supreme Court had found that another analogy than that until then assumed correct in the instant case was more pertinent, namely application by analogy of the procedures relating to surveillance data (see paragraphs 37-38 above). After obtaining the views of the persons involved in the applicant’s case concerning that new decision, the City Court concluded that owing to the Supreme Court’s fresh directions it should abandon its filtering procedure and send the mirror image copy back to the police. Thereafter the police itself examined it as described in its report of 9 November 2017 (see paragraph 27 above). 54. Having regard to the foregoing observations, the Court does not find it necessary in the instant case to consider whether or under what circumstances credible claims for LPP in respect of specific data carriers entail that they must be sent to a court or another third-party independent of the police and prosecution in order to have any data covered by LPP deleted before the latter may proceed to search the data carriers. In the instant case it suffices for the Court to make the following observations. 55. Firstly, the Court takes note of the circumstance that the proceedings relating to the filtering of LPP in cases such as the present one lacked a clear basis in the Code of Criminal Procedure right from the outset, which rendered them liable to disputes such as that which followed the Supreme Court’s decision of 16 January 2017. Secondly, the actual form of the proceedings could hardly be foreseeable to the applicant – notwithstanding that he was allowed to object (see paragraph 12 above) – given that they were effectively reorganised following that decision. Thirdly, and most importantly, the Court finds that the Government have not rebutted the applicant’s contention that subsequently to the Supreme Court’s finding in its decision of 16 January 2017 that the police should themselves examine the data carriers in cases such as the present one, the decision to apply that instruction to the applicant’s ongoing case, which became final with the Supreme Court’s decision of 30 June 2017 (see paragraph 26 above), meant that no clear and specific procedural guarantees were in place to prevent LPP from being compromised by the search of the mirror image copy of his phone. The Supreme Court had not given any instructions as to how the police were to carry out the task of filtering LPP, apart from indicating that search words should be decided upon in consultation with counsel; even though the claim lodged for LPP in the instant case was as such undisputedly valid, the mirror image copy was effectively just returned to the police for examination without any practical procedural scheme in place for that purpose. As to the report of 9 November 2017 (see paragraph 27 above), it described the deletion of data in the applicant’s case, but did not describe any clear basis or form for the procedure either. 56. In this context the Court emphasises that it has noted that the Government did indeed point to the procedural safeguards in place relating to searches and seizures in general; the Court’s concern is, however, the lack of an established framework for the protection of LPP in cases such as the present one. On that point, the Court observes in passing that the Supreme Court, in its decision of 16 January 2017 in fine, also pointed to the lack of provisions suited to situations where LPP data form part of batches of digitally stored data, and indicated that it would be natural to regulate the exact issue that arose in the instant case by way of formal provisions of law (see paragraph 40 above). The Court thus notes that the issue that arose in the instant case was not as such owing to the Supreme Court’s findings in that case, rather it originated in the lack of appropriate regulation as pointed out by that court. 57. Although no such regulation was in place in the applicant’s case, the Court has no basis to decide whether or not LPP was actually compromised in his case, nor has the applicant submitted that it was. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of LPP, already fell short of the requirements flowing from the criterion that the interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention. Having drawn that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision. 58. In the light of the above, the Court finds that there has been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 59. In his application to the Court the applicant complained that the proceedings relating to the search of his smart phone amounted to a violation of the rights secured to him under Article 6 § 3 of the Convention. In his subsequent observations the applicant informed the Court that he had meanwhile been acquitted of the criminal charges against him (see paragraph 28 above), and admitted that he could therefore no longer claim to be a victim of a violation of Article 6. The Court does not find grounds for calling this into question and accordingly finds that the complaint under Article 6 must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention APPLICATION OF ARTICLE 41 OF THE CONVENTION 60. 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.” Damage 61. The applicant claimed non-pecuniary damages to an amount assessed at the Court’s discretion. He did not claim pecuniary damages. 62. The Government did not contest that, should the Court find a violation of Article 8 of the Convention, there might be grounds for awarding just satisfaction in respect of non-pecuniary damage. 63. The Court, in view of the relatively technical nature of the violation found and the circumstances of the case, considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage which the applicant may have suffered. Costs and expenses 64. The applicant also claimed 101,937.50 Norwegian kroner –approximately EUR 9,500 for costs incurred before the Court. 65. The Government accepted that the applicant should be entitled to recover his costs in the event that the Court found a violation of Article 8 of the Convention, but maintained that the amount should be reduced since the applicant had accepted that he had no valid claim under Article 6. 66. The Court notes that the applicant requested legal aid, but did not upon its request submit the requisite information. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the parties’ submissions and the above criteria, the Court considers it reasonable to award the sum of EUR 7,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 67. The Court considers it appropriate that the default interest rate 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 in the applicant’s case. It had no basis to decide whether or not legal professional privilege had actually been compromised in his case. In the Court’s view, however, the lack of foreseeability in the instant case, due to the lack of clarity in the legal framework and the lack of procedural guarantees relating concretely to the protection of legal professional privilege, had already fallen short of the requirements flowing from the criterion that the interference must be in accordance with the law.