Guide on Article 8 of the Convention – Right to respect for private and family life
484. The existence of a search warrant providing relevant and sufficient reasons for issuing letters rogatory does not necessarily safeguard against all risks of abuse, because regard must also be had to its scope and the powers conferred on the inspectors. The Court has thus found a violation in cases of search warrants which were too broad in scope and conferred too much power on the investigators, and where no regard was had to the person’s status as a lawyer and no action taken to properly protect his or her professional secrecy (Kolesnichenko v. Russia, §§ 32-35; Iliya Stefanov v. Bulgaria, §§ 39-44; Smirnov v. Russia, § 48; Aleksanyan v. Russia, § 216). In Kruglov and Others v. Russia, the Court found a violation of Article 8 because the national courts had issued a search warrant believing that the only safeguard to be ensured during the search of a lawyer’s premises was a prior judicial authorization. The Court held that national courts could not authorise a breach of lawyer-client confidentiality in every case where there was a criminal investigation, even where such investigation was not against the lawyers but against their clients. Furthermore, the Court stated that national courts have to weigh the obligation to protect lawyer-client confidentiality against the needs of criminal investigations (ibid., §§ 126-129). 485. The Court has also taken issue with seizures and searches which, although accompanied by special procedural guarantees, were nonetheless disproportionate to the legitimate aim pursued (Roemen and Schmit v. Luxembourg, §§ 69-72). In assessing whether the extent of the interference was proportionate and therefore “necessary in a democratic society”, the Court has taken into account the amount of documents that needed to be examined by the authorities, the time it took them to do so and the level of inconvenience the applicant had to suffer (Wolland v. Norway, § 80). 486. It should be noted that under Article 8 a search can raise issues from the angle of respect for “home”, “correspondence” and “private life” (Golovan v. Ukraine, § 51 ; Wolland v. Norway, § 52).
E. Journalists’ homes 487. Searches of press premises aimed at obtaining information on journalists’ sources can raise an issue under Article 8 (and are therefore not liable solely to assessment under Article 10 of the Convention). Searches of lawyers’ premises may be aimed at discovering journalists’ sources (Roemen and Schmit v. Luxembourg, §§ 64-72). 488. In Ernst and Others v. Belgium, the Court considered disproportionate a series of searches conducted of journalists’ professional and private premises, even though it acknowledged that they had afforded some procedural guarantees. The journalists had not been charged with any offences, and the search warrants had been couched in broad terms and had not included any information on the investigation in question, the premises to be inspected and the items to be seized. Consequently, those warrants conferred too many powers on the investigators, who had thus been able to copy and seize extensive data. Moreover, the journalists had not been informed of the reasons for the searches (§§ 115-116). 489. The Court has assessed a search of the headquarters of a company which published a newspaper with a view to confirming the identity of the author of an article published in the press. It held that the fact that the journalists and the employees of the company had cooperated with the police did not make the search and the associated seizure any less intrusive. The competent authorities should show restraint in implementing such measures, having regard to the practical requirements of the case (Saint-Paul Luxembourg S.A. v. Luxembourg, §§ 38 and 44). 490. As regards search-and-seizure operations during criminal proceedings against journalists, in Man and Others v. Romania (dec.) the Court listed the elements it has taken into account in examining whether domestic law and practice afforded adequate and effective safeguards against any abuse and arbitrariness (§ 86).
European Court of Human Rights
110/161
Last update: 31.08.2021
