Guide on Article 8 of the Convention – Right to respect for private and family life
C. Lawyers’ correspondence73 581. Correspondence between a lawyer and his or her client, whatever its purpose, is protected under Article 8 of the Convention, such protection being enhanced as far as confidentiality is concerned (Michaud v. France, §§ 117-119). This is justified by the fact that lawyers are assigned a fundamental role in a democratic society, that of defending litigants. The content of the documents intercepted is immaterial (Laurent v. France, § 47). Professional secrecy is “the basis of the relationship of confidence between lawyer and client” (ibid.) and any risk of impingement on it may have repercussions on the proper administration of justice, and hence on the rights guaranteed by Article 6 of the Convention (Niemietz v. Germany, § 37; Wieser and Bicos Beteiligungen GmbH v. Austria, § 65). Indirectly but necessarily dependent on the principle of professional secrecy is the right of everyone to a fair trial, including the right of anyone "charged with a criminal offence” not to incriminate themselves (Michaud v. France, § 118). See also as regards an exchange between the applicant’s lawyer and a third party (Falzarano v. Italy (dec.), § 5, 24, 32-34). 582. In Kruglov and Others v. Russia, the Court examined the protection of professional confidentiality of practising lawyers who are not members of the Bar and found a violation of Article 8. It held that it would be incompatible with the rule of law to leave without any particular safeguards at all the entire relationship between clients and legal advisers who, with few limitations, practise professionally and often independently, including by representing litigants before the courts (§ 137). 583. The Court has, for example, examined the compatibility with Article 8 of the Convention of the failure to forward a letter from a lawyer to his client (Schönenberger and Durmaz v. Switzerland) and the tapping of a law firm’s telephone lines (Kopp v. Switzerland). 584. The term “correspondence” is construed broadly (see for instance, Klaus Müller v. Germany, §§ 37-41 as concerns general business exchanges between a lawyer and the representatives of his law firm’s clients). It also covers lawyers’ written files (Niemietz v. Germany, §§ 32-33; Roemen and Schmit v. Luxembourg, § 65), computer hard drives (Petri Sallinen and Others v. Finland, § 71), electronic data (Wieser and Bicos Beteiligungen GmbH v. Austria, §§ 66-68; Robathin v. Austria, § 39), USB keys (Kırdök and Others v. Turkey, § 32), computer files and email accounts (Vinci Construction and GTM Génie Civil et Services v. France, § 69) and a folded piece of paper on which a lawyer had written a message and handed it to his clients (Laurent v. France, § 36). It also concerns correspondence between an applicant and his lawyers contained in the applicant’s own device (Saber v. Norway, § 52; see also Versini-Campinchi and Crasnianski v. France). 585. The simple fact that the authorities possessed a copy of professional data seized in the applicant’s law firm constitutes an interference, regardless of whether the data was decrypted or not (Kırdök and Others v. Turkey, §§ 33 and 36-37) 586. Although professional privilege is of great importance for the lawyer, the client and the proper administration of justice, it is not inviolable (Michaud v. France, §§ 123 and 128-129). In the case cited, the Court examined whether the obligation for lawyers to report their suspicions of unlawful moneylaundering activities by their clients, where such suspicions came to light outside the context of their defence role, amounted to disproportionate interference with legal professional privilege (no violation). In Versini-Campinchi and Crasnianski v. France the Court examined the interception of a lawyer’s conversation with a client whose telephone line had been tapped, thus disclosing the Not including the case of correspondence with prisoners, which is addressed in the previous chapter Prisoners’ correspondence.
73
European Court of Human Rights
127/161
Last update: 31.08.2021
