BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF WIESER AND BICOS BETEILIGUNGEN GMBH v. AUSTRIA
(Application
no. 74336/01)
JUDGMENT
STRASBOURG
16 October
2007
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Wieser and Bicos Beteiligungen GmbH v. Austria,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza,
President,
Mr J. Casadevall,
Mr G.
Bonello,
Mrs E. Steiner,
Mr S.
Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 25 September 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 74336/01) against the Republic
of Austria lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Gottfried Wieser, an Austrian national, and
Bicos Beteiligungen GmbH, a limited liability company with its seat
in Salzburg (“the applicants”), on 3 August 2001.
- The
applicants were represented by Mrs P. Patzelt, a lawyer practising in
Salzburg. The Austrian Government (“the Government”) were
represented by their Agent, Ambassador F. Trauttmansdorff, Head of
the International Law Department at the Federal Ministry of Foreign
Affairs.
- The
applicants alleged that the search and seizure of electronic data in
the context of a search of their premises had violated their rights
under Article 8 of the Convention.
- By
a decision of 16 May 2006 the Court declared the application
admissible.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
first applicant, who was born in 1949, is a lawyer practising in
Salzburg. He is the owner and general manager of the second
applicant, a holding company which is, inter alia, the sole
owner of the limited liability company Novamed.
- On
30 August 2000 the Salzburg Regional Court (Landesgericht),
upon a request for legal assistance (Rechtshilfeersuchen) by
the Naples Public Prosecutor's Office, issued a warrant to search the
seat of the applicant company and Novamed. Both companies have their
seats at the first applicant's law office.
- The
court noted that in the course of pending criminal proceedings
concerning, inter alia, illegal trade in medicaments against a
number of persons and companies in Italy, invoices addressed to
Novamed, owned 100% by the applicant company, had been found. It
therefore ordered the seizure of all business documents revealing
contacts with the suspected persons and companies.
A. The search of the applicants' premises and seizure
of documents and data
- 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.
B. The applicants' complaint to the Review Chamber
- 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.
C. The applicants' complaint to the Salzburg
Independent Administrative Panel
- 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Provisions of the Code of Criminal Procedure
relating to search and seizure
- 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:
“1. When searching through documents
steps must be taken to ensure that their content does not become
known to unauthorised persons.
2. If the owner of the documents does not
want to permit their being searched, they shall be sealed and
deposited with the court; the Review Chamber must determine
immediately whether they are to be examined or returned.”
- 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.
B. Provisions relating to the professional secrecy of
lawyers
- 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.
C. Review by the Independent Administrative Panel
- 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 LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicants complain about the search and seizure of electronic data.
They rely on Article 8 of the Convention which reads as follows:
“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.”
A. Applicability of Article 8
- 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.
B. Compliance with Article 8
1. The parties' submissions
- The
Court observes at the outset that in its admissibility decision of 16
May 2006 it joined the Government's objection as to non-exhaustion to
the merits. The Government argued that the applicants had failed to
make use of the possibility, provided for in the Code of Criminal
Procedure, to request that documents or data be sealed and deposited
with the court in order to obtain a court decision on whether or not
they may be used for the investigation. The applicants contested this
view, arguing that the manner in which the search was carried out had
deprived them of the possibility to make effective use of their
rights.
- On
the merits, the applicants asserted that the search and seizure of
electronic data had been disproportionate. They claimed that the
first applicant was not only the manager of the applicant company but
also its counsel and the counsel of Novamed. Thus the search had
necessarily led to correspondence, for instance letters and file
notes that the first applicant had made in his capacity as counsel.
During the search of the paper documents all such documents had
either been removed immediately or sealed and returned to the
applicant by the investigating judge as being subject to professional
secrecy. In contrast, the electronic data had been seized without
observing the attendant procedural guarantees. In this connection the
applicants relied on the same arguments as submitted in respect of
the issue of exhaustion of domestic remedies.
- The
applicants maintained that the applicant company's rights had also
been infringed, since it had had no control over the kind of data
that were seized. The search for the word Bicos had necessarily led
to data unrelated to the subject defined in the search warrant. The
procedural guarantees laid down in the Code of Criminal Procedure had
not been complied with, since the applicant company had not been
given the possibility to have the data sealed and to obtain a
decision by the investigating judge as to which data might be used
for the investigation.
- The
Government noted at the outset that the applicants only complained
about the search of electronic data and that their submissions
essentially related to the first applicant's position as a lawyer and
to the alleged lack of safeguards to protect his duty of professional
secrecy, while the complaint as regards the applicant company
remained unsubstantiated.
- Referring
to the Court's case-law, the Government argued that the search and
seizure of electronic data had a legal basis in the Code of Criminal
Procedure and served legitimate aims, namely the prevention of crime
and the protection of health.
- As
regards the necessity of the interference, the Government asserted
that the search and seizure of the data had been proportionate to the
legitimate aim pursued. The contested measures had been ordered by a
judicial search warrant which had delimited their scope. Moreover,
Austrian law contained specific procedural safeguards for the search
of a lawyer's office. They had been complied with in that the search
had taken place in the presence of the applicant and a representative
of the Bar Association, whose role had been to ensure that the search
did not encroach on the first applicant's duty of professional
secrecy. In accordance with the search warrant, the first applicant's
computer facilities had been searched with the help of certain key
words, that is, the names of the firms involved, Novamed and Bicos,
and the names of the suspects in the proceedings conducted in Italy.
Since the first applicant was not the second applicant's counsel,
their lawyer-client relationship had not been affected. Moreover, the
representative of the Bar Association had been informed of the search
of the first applicant's computer facilities and the search procedure
documented in the data securing report. The fact that the said report
had not been drawn up during the search but later the same day was
not decisive, since the main aim of recording which data had been
seized had been achieved.
2. The Court's assessment
(a) In accordance with the law
- The
Court reiterates that an interference cannot be regarded as “in
accordance with the law” unless, first of all, it has some
basis in domestic law. In relation to Article 8 § 2 of the
Convention, the term “law” is to be understood in its
“substantive” sense, not in its “formal” one.
In a sphere covered by the written law, the “law” is the
enactment in force as the competent courts have interpreted it (see
Société Colas Est and Others, cited above, §
43, with further references, and Petri Sallinen and Others,
cited above, § 77).
- The
Austrian Code of Criminal Procedure does not contain specific
provisions for the search and seizure of electronic data. However, it
contains detailed provisions for the seizure of objects and, in
addition, specific rules for the seizure of documents. It is
established in the domestic courts' case-law that these provisions
also apply to the search and seizure of electronic data (see
paragraph 34 above). In fact, the applicants do not contest that the
measures complained of had a basis in domestic law.
(b) Legitimate aim
- The
Court observes that the search and seizure was ordered in the context
of criminal proceedings against third persons suspected of illegal
trade in medicaments. It therefore served a legitimate aim, namely,
the prevention of crime.
(c) Necessary in a democratic society
- The
parties' submissions concentrated on the necessity of the
interference and in particular on the question whether the measures
were proportionate to the legitimate aim pursued and whether the
procedural safeguards provided for by the Code of Criminal Procedure
were adequately complied with.
- In
comparable cases, the Court has examined whether domestic law and
practice afforded adequate and effective safeguards against any abuse
and arbitrariness (see, for instance, Société Colas
Est and Others, cited above, § 48). Elements taken into
consideration are, in particular, whether the search was based on a
warrant issued by a judge and based on reasonable suspicion, whether
the scope of the warrant was reasonably limited and – where the
search of a lawyer's office was concerned – whether the search
was carried out in the presence of an independent observer in order
to ensure that materials subject to professional secrecy were not
removed (see Niemietz, cited above, p. 36, § 37, and
Tamosius, cited above).
- In
the present case, the search of the applicants' computer facilities
was based on a warrant issued by the investigating judge in the
context of legal assistance for the Italian authorities which were
conducting criminal proceedings for illegal trade in medicaments
against a number of companies and individuals. It relied on the fact
that invoices addressed to Novamed, 100% owned by the applicant
company, had been found. In these circumstances, the Court is
satisfied that the search warrant was based on reasonable suspicion.
- The
Court also finds that the search warrant limited the documents or
data to be looked for in a reasonable manner, by describing them as
any business documents revealing contacts with the suspects in the
Italian proceedings. The search remained within these limits, since
the officers searched for documents or data containing either the
word Novamed or Bicos or the name of any of the suspects.
- Moreover,
the Code of Criminal Procedure provides further procedural safeguards
as regards the seizure of documents and electronic data. The Court
notes the following provisions of the Code:
(a) The
occupant of premises searched shall be present;
(b) A
report is to be drawn up at the end of the search and items seized
are to be listed;
(c) If
the owner objects to the seizure of documents or data carriers they
are to be sealed and put before the judge for a decision as to
whether or not they are to be used for the investigation; and
(d) In
addition, as far as the search of a lawyer's office is concerned, the
presence of a representative of the Bar Association is required.
- The
applicants' claim is not that the guarantees provided by Austrian law
are insufficient but that they were not complied with in the present
case as regards the seizure of data. The Court notes that a number of
officers carried out the search of the applicants' premises. While
one group proceeded to the seizure of documents, the second group
searched the computer system using certain search criteria and seized
data by copying numerous files to disks.
- The
Court observes that the safeguards described above were fully
complied with as regards the seizure of documents: whenever the
representative of the Bar Association objected to the seizure of a
particular document, it was sealed. A few days later the
investigating judge decided in the presence of the applicant which
files were subject to professional secrecy and returned a number of
them to the applicant on this ground. In fact, the applicants do not
complain in this respect.
- What
is striking in the present case is that the same safeguards were not
observed as regards the electronic data. A number of factors show
that the exercise of the applicants' rights in this respect was
restricted. First, the member of the Bar Association, though
temporarily present during the search of the computer facilities, was
mainly busy supervising the seizure of documents and could therefore
not properly exercise his supervisory function as regards the
electronic data. Second, the report setting out which search criteria
had been applied and which files had been copied and seized was not
drawn up at the end of the search but only later the same day.
Moreover, the officers apparently left once they had finished their
task without informing the first applicant or the representative of
the Bar Association of the results of the search.
- It
is true that the first applicant could have requested, in a global
manner at the beginning of the search, to have any disks with copied
data sealed and submitted to the investigating judge. However, since
the Code of Criminal Procedure provides for a report to be drawn up
at the end of the search, and requires that the items seized be
listed, he could expect that procedure to be followed. Since this was
not the case he had no opportunity to exercise his rights
effectively. Consequently, the Government's objection of
non-exhaustion has to be dismissed.
- With
regard to the first applicant this manner of carrying out the search
incurred the risk of impinging on his right to professional secrecy.
The Court has attached particular weight to that risk since it may
have repercussions on the proper administration of justice (see
Niemietz, cited above, p. 36, § 37). The domestic
authorities and the Government argued that the first applicant was
not the applicant company's counsel and that the data seized did not
concern their client-lawyer relationship. It is true that the first
applicant, contrary to his submissions before the Court, did not
claim before the domestic authorities that he was the applicant
company's counsel, nor that he was the counsel of Novamed. However,
he claimed throughout the proceedings that he acted as counsel for
numerous companies whose shares were held by the second applicant.
Moreover, the Government did not contest the applicants' assertion
that the electronic data seized contained by and large the same
information as the paper documents seized, some of which were
returned to the first applicant by the investigating judge as being
subject to professional secrecy. It can therefore be reasonably
assumed that the electronic data seized also contained such
information.
- In
conclusion, the Court finds that the police officers' failure to
comply with some of the procedural safeguards designed to prevent any
abuse or arbitrariness and to protect the lawyer's duty of
professional secrecy rendered the search and seizure of the first
applicant's electronic data disproportionate to the legitimate aim
pursued.
- Furthermore,
the Court observes that a lawyer's duty of professional secrecy also
serves to protect the client. Having regard to its above findings
that the first applicant represented companies whose shares were held
by the second applicant and that the data seized contained some
information subject to professional secrecy, the Court sees no reason
to come to a different conclusion as regards the second applicant.
- Consequently,
there has been a violation of Article 8 in respect of both
applicants.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- 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.
B. Costs and expenses
- 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.
C. Default interest
- 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.
FOR THESE REASONS, THE COURT
- Dismisses unanimously the Government's
preliminary objection as to non-exhaustion of domestic remedies;
- Holds unanimously that there has been a
violation of Article 8 of the Convention in respect of the first
applicant;
- Holds by four votes to three that there has been
a violation of Article 8 of the Convention in respect of the second
applicant;
- Holds unanimously
(a) that
the respondent State is to pay the first applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 2,500 (two
thousand five hundred euros) in respect of non-pecuniary damage and
EUR 10,000 (ten thousand euros) in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicants' claim for just satisfaction.
Done in English, and notified in writing on 16 October 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the joint partly dissenting opinion
of Sir Nicolas Bratza, Mr Casadevall and Ms Mijović is annexed
to this judgment.
N.B.
T.L.E.
JOINT PARTLY DISSENTING OPINION OF
JUDGES BRATZA,
CASADEVALL AND MIJOVIĆ
While
in full agreement that the first applicant's rights under Article 8
were violated in the present case, we take a different view as
regards the second applicant.
Although
the first applicant was the owner and general manager of the
applicant company and although the company had its seat at the first
applicant's law office, he was not the counsel or legal adviser of
the company. It appears that the first applicant acted as legal
adviser of certain of the companies owned by the second applicant.
However, it has not been claimed that the search and seizure carried
out in the first applicant's law office involved electronic data
relating to any of the subsidiary companies of which he was the legal
adviser. In these circumstances, we are not satisfied that the
applicant company may be said to have been affected by the absence of
procedural safeguards designed to protect the lawyer-client
relationship which have been found by the Court to give rise to a
finding of a violation of Article 8 of the Convention.
