EHRM, 16-10-2007, nr. 74336/01

On 10 October 2000 the search of the seat of the applicant company, which is also the first applicant's law office, was carried out by eight to ten officers of the Salzburg Economic Police (Wirtschaftspolizei) and data securing experts (Datensicherungsexperten) of the Federal Ministry of the Interior.

One group of the officers searched the law office for files concerning Novamed or Bicos in the presence of the first applicant and a representative of the Salzburg Bar Association. All documents were shown to the first applicant and the representative of the Bar Association before seizure.

Whenever the first applicant objected to an immediate examination of a document seized it was sealed and deposited at the Salzburg Regional Court as required by Article 145 of the Code of Criminal Procedure (Strafprozeßordnung— see paragraph 33 below). All seized or sealed documents were listed in a search report which was signed by the applicant and the officers who had carried out the search.

Simultaneously, another group of officers examined the first applicant's computer facilities and copied several files to disks. According to his statement before the Independent Administrative Panel (see paragraph 25 below) the IT specialist who normally serviced the computer facilities was called upon to provide some technical assistance but left again after about half an hour. The representative of the Bar Association was informed about the search of the computer facilities and was also temporarily present. When the officers had terminated the search of the computer facilities, they left without having drawn up a search report and, apparently, also without informing the first applicant about the results of the search.

Later the same day the police officers involved in the search of the applicants' electronic data drew up a data securing report (Daten-sicherungsbericht). Apart from a number of technical details concerning the first applicant's computer facilities, the report states that no complete copy of the server was made. The search was carried out using the names of the companies involved and the names of the suspects in the Italian proceedings. A folder named Novamed containing ninety files was found plus one further file containing one of the search items. All the data were copied to disks. In addition, the deleted items were retrieved and numerous files which corresponded to the search items were found and also copied to disks.

On 13 October 2000 the investigating judge opened the sealed documents in the presence of the first applicant. Some documents were copied and added to the file while others were returned to the first applicant on the ground that their use would impinge on the first applicant's duty of professional secrecy.

The disks containing the secured data were transmitted to the Economic Police where all the files were printed out. Both the disks and print-outs were then handed over to the investigating judge.

On 28 November 2000 the first applicant, and on 11 December 2000 the applicant company, lodged complaints with the Review Chamber (Ratskammer) of the Salzburg Regional Court.

They submitted that the first applicant was the owner and manager of the applicant company but also the lawyer of a number of companies in which the latter held shares. They complained that the search of their premises and the seizure of electronic data had infringed the first applicant's right and duty of professional secrecy under section 9 of the Lawyers Act (Rechtsanwaltsordnung) in conjunction with Article 152 of the Code of Criminal Procedure as some officers had proceeded unobserved to examine and subsequently copy electronic data. The applicants submitted that the data contained the same information as the documents which had been examined in the presence of the first applicant. However, with regard to the electronic data, the first applicant had not been given an opportunity to object and have the disks sealed.

They further submitted that the search report did not mention that part of the search, nor did it mention which electronic data had been copied and seized. Furthermore, the search report had only been signed by three of the officers, but did not mention the names of all the officers who had been present at the search, omitting in particular the names of the data securing experts of the Federal Ministry for the Interior.

On 31 January 2001 the Review Chamber dismissed the applicants' complaints.

It observed that the first applicant's computer data had been searched with the aid of particular search criteria. Files which corresponded to these search criteria had been copied to disks which had been seized.

However, there was no ground for holding that this seizure circumvented Article 152 of the Code of Criminal Procedure: the search of the first applicant's law office concerned exclusively documents which the first applicant had in his possession as an organ of Novamed and Bicos, and therefore did not concern a lawyer-client relationship.

It further observed that the search of the first applicant's law office was based on a lawful search warrant which included the search and seizure of electronic data. The procedural safeguards laid down in Article 145 of the Code of Criminal Procedure, namely the right of the person concerned to object to an immediate examination and to request the deposit of data seized with the Regional Court and a decision by the Review Chamber, also applied to the search of electronic data.

In the present case, however, the officers had, whenever asked, complied with the first applicant's requests to seal certain documents and deposit them with the Regional Court. Some of these documents had been returned by the court in order to ensure compliance with the applicant's duty of professional secrecy.

It therefore concluded that the applicants' complaints were unfounded. The Review Chamber's decision was served on 7 February 2001.

In the meantime, on 20 November and on 21 November 2000 respectively, the applicants lodged complaints with the Salzburg Independent Administrative Panel (Unabhängiger Verwaltungssenat). They submitted that the search and seizure of electronic data in the first applicant's office had been unlawful.

On 2 April, 11 June and 11 July 2001 the Independent Administrative Panel held public hearings at which it heard evidence from a number of witnesses.

The IT specialist in charge of the first applicant's computer facilities said that he had been called and had arrived at the office when the search of the premises was already under way. He had left again after half an hour. The officer in charge of the search stated that the first applicant had been informed about the search of his computer data. Two other officers stated that the search of the first applicant's computer facilities had not been started until the arrival of his IT specialist and that the representative of the Bar Association had been temporarily present. This was confirmed by the representative of the Bar Association.

On 24 October 2001 the Salzburg Independent Administrative Panel rejected the applicants' complaints. It found that they concerned alleged breaches of certain provisions of the Code of Criminal Procedure regulating searches. The officers who had carried out the search had possibly not fully complied with these provisions. They had, however, acted on the basis of the search warrant and not exceeded the instructions of the investigating judge. The search was therefore imputable to the court. Consequently, a review of lawfulness did not fall within the competence of the Independent Administrative Panel.

Articles 139 to 149 of the Code of Criminal Procedure concern the search of premises and persons and the seizure of objects.

Article 139 § 1 provides in particular that a search may only be carried out if there is a reasonable suspicion that a person suspected of having committed an offence is hiding on the premises concerned, or that there are objects there the possession or examination of which is relevant to a particular criminal investigation.

Pursuant to Article 140 §§ 1 and 2 a search should in general only be carried out after the person concerned has been questioned, and only if the person sought has not come forward of his or her own volition or the object or objects sought have not been voluntarily produced and if the reasons leading to the search have not been eliminated. No such questioning is required where there is danger in delay.

Article 140 § 3 states that a search may, as a rule, only be carried out on the basis of a reasoned search warrant issued by a judge.

Pursuant to Article 142 §§ 2 and 3 the occupant of the premises subject to the search or, if he is unavailable, a relative of the occupant, shall be present during the search. A report is to be drawn up and to be signed by all those present.

Article 143 § 1 of the Code of Criminal Procedure provides that, if objects relevant to the investigation or subject to forfeiture or confiscation are found, they are to be listed and taken to the court for safekeeping or seized. It refers, in this respect, to Article 98, pursuant to which objects in safe-keeping have to be put into an envelope to be sealed by the court, or have a label attached so as to avoid any substitution or confusion.

Article 145 reads as follows:

According to the courts' case-law, which is endorsed by the opinion of academic writers (see Bertl/Vernier, Grundriss des österreichischen Strafprozessrechts, 7th edition), the provisions relevant to the search and seizure of paper documents also apply mutatis mutandis to the search and seizure of electronic data. If the owner of disks or hard disks on which data is stored objects to their being searched, the data carriers are to be sealed and the Review Chamber must decide whether they may be examined.

Section 9 of the Austrian Lawyers Act regulates the professional duties of lawyers including, inter alia, the duty to maintain professional secrecy.

Article 152 § 1 of the Code of Criminal Procedure exempts lawyers, notaries and business trustees from the obligation to give evidence as witnesses in respect of information given to them in the exercise of their profession.

It is established case-law that documents which contain information subject to professional secrecy may not be seized and used in a criminal investigation.

According to an instruction (Erlaß) of the Federal Minister of Justice of 21 July 1972, a representative of the competent Bar Association shall be present during the search of a lawyer's office in order to ensure that the search does not encroach on professional secrecy.

By virtue of section 67a(1) of the General Administrative Procedure Act (Allgemeines Verwaltungsverfahrensgesetz), Independent Administrative Panels have jurisdiction, inter alia, to examine complaints from persons alleging a violation of their rights resulting from the exercise of direct administrative authority and coercion (Ausübung unmittelbarer verwaltungsbehördlicher Befehls- und Zwangsgewalt).

Where police officers execute a court warrant their acts are imputable to the court unless they act in clear excess of the powers conferred on them. Only in the latter case are their acts qualified as exercise of direct administrative authority and coercion and subject to review by the Independent Administrative Panel.

The Government based their comments on the assumption that the search and seizure at issue interfered with the applicants' ‘private life’ and ‘home’.

The Court reiterates that the search of a lawyer's office has been regarded as interfering with ‘private life’ and ‘correspondence’ and, potentially, home, in the wider sense implied by the French text which uses the term ‘domicile’ (see Niemietz v. Germany, judgment of 16 December 1992, Series A no. 251-B, pp. 33–35, §§ 29–33, and Tamosius v. the United Kingdom (dec.), no. 62002/00, ECHR 2002-VIII; see also Petri Sallinen and Others v. Finnland, no. 50882/99, § 71, 27 September 2005, which confirms that the search of a lawyer's business premises also interfered with his right to respect for his ‘home’). The search of a company's business premises was also found to interfere with its right to respect for its ‘home’ (see Société Colas Est and Others v. France, no. 37971/97, ECHR 2002-III, §§ 40–42).

In the present case, the applicants do not complain about the search of their business premises, which are the first applicant's law office and the applicant company's seat nor do they complain about the seizure of documents. They only complain in respect of the search and seizure of electronic data.

The Court considers that the search and seizure of electronic data constituted an interference with the applicants' right to respect for their ‘correspondence’ within the meaning of Article 8 (see Niemietz, cited above, pp. 34–35, § 32 as regards a lawyer's business correspondence, and Petri Sallinen and Others, cited above, § 71, relating to the seizure of a lawyer's computer disks). Having regard to its above-cited case-law extending the notion of ‘home’ to a company's business premises, the Court sees no reason to distinguish between the first applicant, who is a natural person, and the second applicant, which is a legal person, as regards the notion of ‘correspondence’. It does not consider it necessary to examine whether there was also an interference with the applicants' ‘private life’.

The Court must therefore determine whether the interference with the applicants' right to respect for their correspondence satisfied the requirements of paragraph 2 of Article 8.

Under the head of pecuniary damage, the first applicant claimed 4,000 euros (EUR) per year starting with the year 2000 for loss of clients. He submitted that he was unable to adduce proof without breaching his duty of professional secrecy. Moreover, he claimed EUR 10,000 as compensation for non-pecuniary damage since his reputation as a lawyer had suffered as a result of the events.

The applicant company claimed EUR 20,211.56 in compensation for pecuniary damage. It asserted that, being a holding company, its name had been ruined by the seizure of the data. Consequently, it had had to be newly established under another name and had therefore had to raise EUR 17,500 for the nominal capital of the new company and to pay costs of EUR 2,711.56 for the legal acts involved. It did not submit a claim in respect of non-pecuniary damage.

The Government asserted that there was no causal link between the violation at issue and the pecuniary damage alleged by the applicants.

With regard to the applicants' claims in respect of pecuniary damage, the Court observes that it cannot speculate as to what the effects on the applicants' reputation would have been had the search and seizure of electronic data been carried out in compliance with the requirements of Article 8 (see, mutatis mutandis, Société Colas Est and Others, cited above, § 54). Consequently, it makes no award under this head.

However, the Court accepts that the first applicant has suffered non-pecuniary damage, such as distress and frustration resulting from the manner in which the search and seizure of data were carried out. Making an assessment on an equitable basis and having regard to the sum awarded in a comparable case (see Petri Sallinen and Others, cited above, § 114) it grants the first applicant EUR 2,500 under the head of non-pecuniary damage.

The first applicant claimed a total amount of EUR 15,967.15 for costs and expenses, composed of EUR 9,204.52 in respect of the domestic proceedings and EUR 6,762.63 in respect of the Convention proceedings. These sums include value-added tax (VAT).

The Government accepted that the costs listed in respect of the domestic proceedings were necessarily incurred. However, they submitted that the amounts claimed were excessive since they were not in accordance with the relevant domestic laws and regulations on the remuneration of lawyers. In particular, only an amount of EUR 1,486.80 — instead of the EUR 4,858 claimed — was due in respect of the proceedings before the Salzburg Independent Administrative Panel. Moreover, the Government argued that the costs claimed in respect of the Convention proceedings were excessive. Only an amount of EUR 2,289.96 was appropriate.

The Court reiterates that if it finds that there has been a violation of the Convention, it may award the applicant the costs and expenses of the domestic proceedings which were necessarily incurred in order to prevent or redress the violation and are reasonable as to quantum (see Société Colas Est and Others, cited above, § 56).

The Court notes that it is not contested that the costs claimed by the first applicant were necessarily incurred. However, it considers that the sums claimed are not reasonable as to quantum. Regard being had to the information in its possession and to the sums awarded in comparable cases, the Court considers it reasonable to award the sum of EUR 10,000 covering costs under all heads. This sum includes VAT.

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.