In Robathin v Austria, the European Court of Human Rights (ECtHR) scrutinized a search and seizure in a law office in light of article 8 of the European Convention on Human Rights.
The applicant was an Austrian lawyer based in Vienna. In 2005, the prosecution conducted an investigation against him on suspicion of grave theft, fraud and embezzlement (later on, the investigation led to an indictment and a trial, but the applicant was finally acquitted of all charges).
In the course of the investigation, an investigative judge issued a warrant for the search of the applicant’s law office and the seizure of documents, personal computers, bank documents, saving books, deeds and will in favor of the applicant and of all files related to Mr R and Mr G.
During the search, the applicant, his defense lawyer and a representative of the bar association were present. The presence of the latter was required according to Austrian law, because the defendant was a lawyer.
The police officers, who conducted the search, copied all files from the applicant’s computer to discs. Upon a request by the representative of the bar association, they stored the files regarding Mr R and Mr G (which were expressly mentioned in the search-and-seizure warrant) on a separate disc.
Since the applicant objected to the data being scrutinized, pursuant to Austrian law a court had to decide whether the files which had been copied could be read by the investigating authorities. The Court approved the screening of all the data – not only the electronic files related to Mr R and Mr G. In the reasoning for this decision, the Court repeated the reasons which had already been given in the search warrant. It stated that the files had been seized in the course of an investigative procedure against the applicant and that the applicant’s duty to confidentiality did not play a role in an investigation targeting the lawyer himself.
The applicant filed an application with the European Court of Human Rights (ECtHR) relying on article 8 ECHR, which protects the right to respect for private life, family life, home and correspondence.
The ECtHR followed the approach it usually takes when dealing with cases involving article 8 ECHR: In a first step, it examined whether there as an interference with one of the rights protected by article 8 ECHR. In the second step, it scrutinized whether the interference had been justified pursuant to article 8 paragraph 2 ECHR.
The Court stated that the search and seizure in the office of the applicant amounted to an interference with the applicant’s rights under article 8 ECHR.
It then turned to the question whether requirements of article 8 paragraph 2 had been met. Pursuant to this provision, an interference with rights enshrined in article 8 paragraph 1 is justified if it is in accordance with the law, serves a legitimate aim and is necessary in a democratic society.
The European Court of Human Rights pointed out that the Austrian Criminal Procedure Code does not contain any provision expressly governing the search and seizure of electronic data; however, according to the standing jurisdiction of Austrian courts, the provisions regarding the seizure of objects and documents are applied to the seizure of electronic files. The European Court of Human Rights stated that the circumstances in which electronic files can be seized are specified in the jurisdiction of Austrian courts in a sufficient manner. Therefore it concluded that there had been a legal basis for the seizure.
The Court stated that the seizure had served a legitimate purpose, namely the fight against crime.
Subsequently, the Court turned to the question whether the search and seizure had been ‘necessary in a democratic society’. When scrutinizing this, the ECtHR establishes whether there are sufficient safeguards against arbitrary actions by the authorities, for example whether the search and seizure is based on a decision by a judge, whether there was a reasonable suspicion and whether the scope and purpose of the search are sufficiently clear. In case of the search of a law office, the ECtHR also scrutinizes whether an independent observer is present who ensure that privileged information is safeguarded.
The European Court of Human Rights pointed out that the search warrant was sufficiently precise regarding the suspicion against the applicant. It contained details on the alleged offences, the time when they allegedly took place and the damage allegedly caused.
However, the Court also stated that the scope and purpose of the warrant had been very broad, since it referred to documents, saving books, wills etc. In order to counterbalance this wide scope, safeguards were required. The ECtHR made clear that safeguards had indeed been in place: A list of all seized items and documents had been compiled, a representative of the bar association had been present during the search and the applicant had had the opportunity to have a court scrutinize whether the examination of the seized electronic data was permissible.
However, the European Court of Human Rights stated that this scrutiny by a court had not been an effective safeguard, because the Austrian court had only given very short, general reasons for its ruling. It had not dealt with the question at all, why it had not been sufficient to scrutinize only the electronic files regarding G. and R. (the persons who had been referred to in the warrant).
For this reason, the ECtHR was unable to examine whether the scrutiny of all electronic files had been proportionate to the aim pursued. Therefore, it considered the search and seizure not ‘necessary in a democratic society’ and found a violation of article 8 ECHR.