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09.02.2022

The ECtHR recognized the lack of procedural guarantees of attorney confidentiality as a violation of the Convention

The European Court of Human Rights recognized a violation of Article 8 of the Convention (the right to respect for private and family life) in the case of SÄRGAVA v. Estonia, which related to the seizure and study of information from the lawyer's phone and laptop in the course of criminal proceedings, reports the official website of NAAU.

"The applicant's complaints about the illegal removal and non-use of materials copied from media as evidence in criminal proceedings were unsuccessful. The applicant, referring to lawyer secrecy and the inviolability of information carriers related to the provision of lawyer services, complained that the seizure of his laptop and mobile phone and their further investigation constituted a violation of his rights under Article 8 of the Convention," the Review of ECtHR decisions for December-November reports in 2021.
Although the ECtHR did not assess whether the lawyer's confidentiality was in fact violated in this case, it pointed to the vagueness of Estonian national legislation on the protection of lawyer's confidentiality and the lack of adequate guarantees of lawyer's confidentiality in the judicial decision on searches.
"At the same time, the lack of procedural guarantees regarding the protection of lawyer's confidentiality no longer meets the requirements of the criterion according to which the intervention must be carried out "in accordance with the law" within the meaning of paragraph 2 of Article 8 of the Convention," the ECtHR said in its decision.
The court recognized the seizure of the applicant's information carriers and their further investigation as an interference with his right to respect for correspondence and therefore recognized a violation of Article 8 of the Convention (right to respect for private and family life). "The ECtHR left open the question of whether the national legislation met the requirements of clarity and predictability, since in any case it did not provide sufficient procedural guarantees to prevent arbitrary or disproportionate interference with lawyer confidentiality," – reads the overview of the ECtHR's positions.
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