The ECHR decision of December 17, 2020 in the case "Saber v. Norway" (aplication No. 459/18).
In 2018, the applicant was assisted in preparing the aplication. Subsequently, the aplication was communicated to Norway.
In the case, an aplication was successfully considered about the insufficient legal framework and guarantees for data protection, which are subject to legal professional privileges when police officers seize a smartphone and examine a copy of its contents made on another data carrier. The case involved a violation of the requirements of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
The applicant was a possible victim of the alleged crime. During the investigation, the police officers seized the applicant's smartphone and removed a mirror copy from it, which they wanted to examine.
The smartphone contained the applicant's correspondence with his lawyers, which meant that some of the information in the smartphone was protected by the rules on legal professional privileges and, thus, was not subject to examination by police officers under Norwegian law. In the order of application by analogy of the norms of the Norwegian legislation on search and seizure of evidence, an initial agreement was reached that the data from the mirror copy of the smartphone should be studied by the District Court of Oslo (tingrett is the court of first instance in the Norwegian judicial system), and the data protected by legal professional privileges must be deleted before police officers could investigate the remaining information. However, in a subsequent decision of the Supreme Court of Norway, which did not concern the applicant, it was found that instead the procedures relating to the data collected during the observation were applied to the case.
In the light of this decision, the District Court stopped the data sorting procedure and sent a mirror copy of the applicant's smartphone data back to the police officers, who fully examined it.
Regarding compliance with article 8 of the Convention. The investigation of the contents of the applicant's smartphone and / or its mirror copy entailed interference with the applicant's right to respect for his correspondence. Moreover, such a study was conducted in relation to the applicant when he had the status of a victim in the framework of the ongoing criminal investigation.
Although the interference had a formal legal basis, the European Court had to determine "whether the legislation was consistent with the principle of the rule of law", namely, whether it was sufficiently predictable in application. The European Court made the following three observations in this regard.
- The procedures related to the sorting of information according to legal professional privileges in cases such as the present one, from the very beginning, did not have sufficient justification in the Norwegian Code of Criminal Procedure, which made them the subject of the complaint under consideration.
- The applicant could hardly have foreseen the actual form of the proceedings, given that after the decision of the Supreme Court of Norway, the relevant procedures were changed.
- Most importantly, after the decision of the Supreme Court of Norway, there were no clear and precise guarantees that would exclude the possibility of violating legal professional privileges by examining a mirror copy of the applicant's smartphone. The Norwegian Supreme Court has not formulated any instructions on how police officers should sort data protected by legal professional privileges, except for an order to consult a lawyer when choosing search keywords. Despite the fact that the complaint filed in the present case about the violation of legal professional privileges was undoubtedly justified, a copy of the data from the applicant's smartphone was nevertheless returned to the police officers for examination without any procedural scheme applicable in practice. The police report mentioned the deletion of data in the applicant's case, but did not specify either the grounds for these actions or a description of the relevant procedure.
Indeed, the Norwegian legislation provided for procedural guarantees in relation to searches and seizure of property in general. However, the European Court was concerned about the fact that there were no grounds for protecting legal professional privileges in cases similar to the applicant's case. In its decision, the Supreme Court of Norway also noted the lack of legal norms that would be suitable for a situation where the data protected by legal professional privileges was included in an array of electronic data that was subjected to external influence, and noted that it would be advisable to regulate the obvious problem that arose in the present case by adopting appropriate legal norms. The problem that arose in the applicant's case was not as such related to the conclusions of the Norwegian Supreme Court, but rather to the lack of relevant legal norms.
The Court did not have information on whether legal professional privileges were actually violated in the present case. There was also no need to consider whether, and if so, under what circumstances, justified complaints about the violation of legal professional privileges in relation to special electronic information carriers meant that they should have been transferred to a court or another third party independent of the police and the prosecutor's office so that all data subject to legal professional privileges were deleted before the police or prosecutor's office began to study the media. Instead, in the absence of predictability in the present case, due to the lack of certainty of the legal framework and the lack of procedural guarantees directly related to the protection of legal professional privileges, it already meant non-compliance with the requirements arising from the criterion according to which interference should be provided for by law.
The case involved a violation of the requirements of article 8 of the Convention (adopted by six votes in favor, with one against).
In the application of article 41 of the Convention. The European Court held that the finding of a violation of the Convention would in itself constitute sufficient just compensation.