Guide on Article 8 of the Convention – Right to respect for private and family life
portance of the existence of effective and adequate safeguards against abuse by the tax authorities (Bernh Larsen Holding AS and Others v. Norway, §§ 172-174, no violation). 478. As regards inspections of premises in the context of anticompetitive practices, the Court found a violation of Article 8 where no prior authorisation had been sought or given for an inspection by a judge, no effective ex post facto scrutiny had been conducted of the necessity of the interference, and no regulations existed on the possible destruction of the copies seized during the inspection (DELTA PEKÁRNY a.s. v. the Czech Republic, § 92).
D. Law firms 479. The concept of “home” in Article 8 § 1 of the Convention embraces not only a private individual’s home but also a lawyer’s office or a law firm (Buck v. Germany, §§ 31-32; Niemietz v. Germany, §§ 30-33). Searches of the premises of a lawyer may breach legal professional privilege, which is the basis of the relationship of trust existing between a lawyer and his client (André and Another v. France, § 41). Consequently, such measures must be accompanied by “special procedural guarantees” and the lawyer must have access to a remedy affording “effective scrutiny” to contest them. That is not the case where a remedy fails to provide for the cancellation of the impugned search (Xavier Da Silveira v. France, §§ 37, 42 and 48). In Kruglov and Others v. Russia, the Court recapitulated its case-law on effective safeguards against abuse or arbitrariness and the elements to be taken into consideration in this regard (§§ 125-132). As persecution and harassment of members of the legal profession strikes at the very heart of the Convention system, searches of lawyers’ homes or offices should be subject to “especially strict scrutiny” (see also, §§ 102-105, concerning international legal materials on the protection of the lawyer-client relationship). Particular safeguards are also required to protect the professional confidentiality of legal advisers who are not members of the Bar (§ 137). 480. In view of the impact of such measures, their adoption and implementation must be subject to very clear and precise rules (Petri Sallinen and Others v. Finland, § 90; Wolland v. Norway, § 62). The role played by lawyers in defending human rights is a further reason why searches of their premises should be subject to especially strict scrutiny (Heino v. Finland, § 43; Kolesnichenko v. Russia, § 31). 481. Such measures may concern offences which directly involve the lawyer or, on the contrary, have nothing to do with him or her. In some cases, the search in question was designed to obviate the difficulties encountered by the authorities in gathering incriminating evidence (André and Another v. France, § 47), in breach of legal professional privilege (Smirnov v. Russia, §§ 46 and 49, see also § 39). The importance of legal professional privilege has always been emphasised in relation to Article 6 of the Convention (rights of the defence) since Niemietz v. Germany (§ 37). The Court also refers to the protection of the lawyer’s reputation (ibid., § 37; Buck v. Germany, § 45). 482. The Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case, in particular, where credible evidence is found of a lawyer’s participation in an offence, or in connection with efforts to combat certain unlawful practices. The Court has emphasised that it is vital to provide a strict framework for such measures (André and Another v. France, § 42). For an example of a search conducted in a law firm in accordance with the requirements of the Convention, see Jacquier v. France (dec.) and Wolland v. Norway and contrast Leotsakos v. Greece, §§ 51-57. 483. The fact that a visit to a home took place in the presence of the chairman of the Bar Association is a “special procedural guarantee” (Roemen and Schmit v. Luxembourg, § 69; André and Another v. France, §§ 42-43) but the presence of that chairman is insufficient on its own (ibid., §§ 44-46; and more generally, as to the need for an independant observer, Leotsakos v. Greece, §§ 40 and 52). The Court has found a violation on the grounds of the lack of a judicial warrant and of effective ex post facto judicial scrutiny (Heino v. Finland, § 45).
European Court of Human Rights
109/161
Last update: 31.08.2021
