- Introduction
On 12 February 2015, the First Section of the European Court of Human Rights (ECtHR) issued its judgment in the case of Yuditskaya and others v. Russia. The case originated in five applications against the Russian Federation, and it presents the opportunity to evaluate the interpretation of Article 8 of the European Convention on Human Rights (ECHR), that is, the protection of the “[r]ight to respect for private and family life”. This post aims to examine the Court’s reasoning with regard to the application of Article 8 and the higher standard of protection it affords in cases that involve searches in lawyers’ premises because of the indirect implications on Article 6, namely, the right to a fair trial.
- Factual background
The relevant circumstances of the case can be summarised as follows: in the context of an investigation related to a bribery case involving the director of a State unitary enterprise and a bailiff, the Leninskiy District Court of Perm issued a warrant authorising a search in a law firm. The search was aimed at collecting documents which were supposed to be relevant as evidence in criminal proceedings. This decision was justified on the basis of the prosecution’s allegations that one of the lawyers, Counsel I.T., who was brother of the allegedly corrupt bailiff, had provided a fictitious contract in order to cover up the illegal bribery between the enterprise and the bailiff.
The ECtHR followed the usual three-stage test in evaluating the complaint and, ultimately, concluded that there had been a violation of Article 8 ECHR.
- First stage test: whether the complaint falls within the scope of one of the rights protected by Article 8 and whether there has been an interference with them.
First, the Court had to clarify whether the complaint fell within the scope of one of the rights protected by Article 8 and whether there had been an interference with them. In this sense, the first step consists of verifying whether the actions of the authorities affected the “home” and “private life” as defined by the Court.
Article 8 protects the home and correspondence as inviolable. Those terms have been interpreted broadly by the Court as including professional premises and any activities or premises forming part of a lawyer’s daily life. In the case of Niemietz v. Germany,[1], the Court held as follows:
« [I]t is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
- More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities».
This interpretation has been used by the ECtHR in several cases dealing with similar issues. In the most recent Yuditskaya case, the Court concluded that there had been a violation of Article 8. The reasons were twofold: the first relates to the right to the private and family life of Counsel I.T. Indeed, in addition to documents allegedly connected to the lawyer involved in criminal investigations, the search also included privileged material of other clients, whose cases were completely unrelated with the charge at issue. The second concerns the involvement of his colleagues’ computers, folders and any other material which were basically unrelated to the investigation.
- Second stage test: whether the interference is justified pursuant to Article 8 para. 2: lawfulness and legitimacy of aims in the light of public interest grounds.
The second step considers whether the interference committed by the public authority was justified under the terms of Article 8 para. 2, which requires that every exceptional interference must be carried out in accordance with the law, justified by the public interest, and necessary in a democratic society.
With regard to compliance with the law, the Court found that the search in the law firm had been authorised by a judicial decision, in accordance with the domestic code of criminal procedure: this, in itself, was enough to affirm the lawfulness of the act and the legitimacy of its aims.[2] However, as subsequently highlighted by the Court, the search warrant had been issued in very broad terms and this had probably resulted in such an unrestrained search by the investigators.[3] In fact, the vagueness of the decision in relation to the scope of the search warrant should have been considered, itself, as a ground for the unlawfulness of the act, especially in the light of the interpretation given to the domestic Code of Criminal Procedure (CCP) and the Advocates Act by the Constitutional Court of Russian Federation, requiring that the scope of the search should be defined in similar cases.[4]
- Final stage test: the proportionality of the measure and its necessity in a democratic society.
The final test aimed to verify whether the balance between individual rights and the public interest had been achieved through the correct application of the principle of proportionality, pursuant to the values of democratic society.[5]
As underlined by the applicants and confirmed by the Court, the reason why the search against Biznes i Pravo lacks proportionality is twofold: it was conducted across the entire office despite the fact that the applicants had voluntarily handed over all the relevant documents to the investigators;[6] no special safeguard was adopted to prevent interference with professional secrecy and other delicate issues linked to the privileged material found in the law firm.
The Court also reaffirmed the central role of lawyers in the administration of justice, by recalling the precedent established in Elci and Others v. Turkey[7], where the Court held as follows:
«The Court would emphasise the central role of the legal profession in the administration of justice and the maintenance of the rule of law. The freedom of lawyers to practise their profession without undue hindrance is an essential component of a democratic society and a necessary prerequisite for the effective enforcement of the provisions of the Convention, in particular the guarantees of fair trial and the right to personal security. Persecution or harassment of members of the legal profession thus strikes at the very heart of the Convention system. For this reason, allegations of such persecution in whatever form, but particularly large scale arrests and detention of lawyers and searching of lawyers’ offices, will be subject to especially strict scrutiny by the Court».[8]
In the Yuditskaya and others it seems that the Court took a similar, strict approach in evaluating whether there had been a lack of proportionality and, therefore, gross arbitrary abuse in violation of Article 8 because of the involvement of a group of lawyers in the search. This is a correct application of the threshold of proportionality, reflecting the one adopted in similar cases[9] where it was determined that two core principles must be in balanced: on the one hand, the protection of the public interest in the prevention of crime and, on the other hand, the respect for the proper administration of justice, in accordance with the principles of the fair trial.
- The search warrant against lawyers issued in violation of Article 8 and its indirect consequences on the general application of Article 6.
It is interesting to observe that, following the reasoning adopted in Niemitz v. Germany, Elci and others v. Turkey and Smirnov v. Russia, the Court reiterated that[10]:
«Having regard to the materials that were inspected and seized, the Court finds that the search impinged on professional secrecy to an extent that was disproportionate to whatever legitimate aim was pursed. The Court reiterates in this connection that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 of the Convention (see Niemietz, cited above, pp. 35-36, § 37)»[11].
As mentioned above, the absence of proportionality found by the Court is based on the contrast between the manner in which the search was carried out and the level of guarantees that lawyers operating in a democratic society should expect in similar cases.
The case presents a violation of Article 8 for the reasons cited above and, simultaneously, highlights the risk of a violation of Article 6 where an act could also have an effect on the right to a fair trial, because of the central role of the category of person concerned by the search.
Therefore, it is remarkable that, although the violation of Article 6 was not among the allegations put forward by the applicants, the Court considered, as it did in its previous case law, the effects that the violation of Article 8 could have in relation to the right to a fair trial. This consistent approach leads to the conclusion that there could be a very close link between the observance of Article 8 and the administration of justice – as guaranteed by Article 6 – when a fundamental category of judicial operators (i.e. lawyers) is involved.
In other words, since lawyers have a core responsibility of handling sensitive situations and information issues in the performance of their duties, the standard of guarantees applied to them in cases such as Yuditskaya should be established in the light of the public interest for a proper administration of justice.
[1] Niemetz v. Germany, 16 December 1992, pp. 9 – 11.
[2] Yuditskaya and Others v. Russia, 12 February 2015, p. 5.
[3] ibidem, para. 29, p. 6.
[4] ibidem, p. 3.
[5] For a deeper, interesting analysis about this point please see Ursula Kilkelly, The right to respect
for private and family life, A guide to the implementation of Article 8 of the European Convention on Human Rights, Human rights handbooks, No. 1, Directorate General of Human Rights Council of Europe, 2001.
[6] Yuditskaya and Others v. Russia, 12 February 2015, p. 3.
[7] Elci and Others v. Turkey, 13 November 2003 – 24 March 2004.
[8] ibidem, para. 669, p. 108.
[9] See Niemetz v. Germany, 16 December 1992, Elci and Others v. Turkey,13 November 2003 – 24 March 2004, Smirnov v. Russia, 7 June – 11 November 2007.
[10] Smirnov v. Russia,7 June – 11 November 2007.
[11] Smirnov v. Russia, 7 June – 11 November 2007, p. 10.
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