European Court of Human Rights

 

FOURTH SECTION

CASE OF NEZIRIĆ v. BOSNIA AND HERZEGOVINA

(Application no. 4088/21)

 

 

 

 

 

 

JUDGMENT

STRASBOURG

5 November 2024

 

This judgment is final but it may be subject to editorial revision.

In the case of Nezirić v. Bosnia and Herzegovina,

The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:

Armen Harutyunyan, President,
Faris Vehabović
Anja Seibert-Fohr, judges,
and Simeon Petrovski, Deputy Section Registrar,

Having regard to:

the application (no. 4088/21) against Bosnia and Herzegovina lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 10 December 2020 by a national of Bosnia and Herzegovina, Mr Sanel Nezirić ("the applicant"), who was born in 1976, lives in Sarajevo and was represented by Ms E. Veledar Arifagić, a lawyer practising in Sarajevo;

the decision to give notice of the application to the Government of Bosnia and Herzegovina ("the Government"), represented by their acting Agent, Ms M. Mijić;

the parties' observations;

Having deliberated in private on 15 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The issue in the case is whether the domestic law offered sufficient procedural safeguards to protect privileged data during the seizure and subsequent examination of a lawyer's mobile phone, as required by Article 8 of the Convention.

2.  The applicant is a lawyer. In 2018 the investigating judge of the Tuzla Cantonal Court, accepting a request by the Tuzla Cantonal Prosecutor ("the prosecutor"), authorised the seizure and examination of the applicant's mobile phone in order to gather evidence against him in the context of a criminal investigation opened in respect of him and several other individuals on charges of criminal association and abuse of office. That decision was upheld by the Tuzla Cantonal Court's Appeals Panel ("the Appeals Panel"), which stated that the investigating authorities would not access any data which were not relevant to the investigation.

3.  The applicant's mobile phone was seized and its exterior examined (model and colour, IMEI number, presence of the SIM card, visible damage and so forth) in the presence of a member of the Sarajevo Bar Association. The prosecutor then made an order for a digital forensic examination of the mobile phone's content, referring in particular to communications between the co-suspects, but noting as well that the expert should make a list of all outgoing and incoming calls; all missed calls; all messages, including multimedia messages; the log of all deleted calls and messages; all contacts; the content of all SMS, Viber and Messenger messages; and "all other evidence which could be connected to the investigation". An expert copied the entire content of the applicant's mobile phone to a DVD and compiled an examination report.

4.  Subsequently, acting upon an oral request by the prosecutor, two investigators sifted through the copied content of the mobile phone, using the phone numbers of the other suspects as search parameters.

5.  On 15 July 2020 the Constitutional Court found no violation of Article 8 of the Convention.

6.  The entire copied content of the applicant's mobile phone was submitted as evidence at trial. Following an objection by the applicant, the Trial Chamber ordered the prosecutor to filter the evidence so as to disclose only the communications relevant to the criminal proceedings. At the time of receipt of the parties' observations, the criminal proceedings in the applicant's case were still ongoing.

THE COURT'S ASSESSMENT

7.  The applicant, referring to legal professional privilege, complained that the seizure of his mobile phone and its examination had violated his rights under Article 8 of the Convention.

8.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

9.  It is not disputed by the parties that the seizure and examination of the applicant's mobile phone entailed an interference with his right to respect for his "correspondence".

10.  The general principles concerning the search and seizure of property from lawyers' offices have been summarised in Särgava v. Estonia (no. 698/19, §§ 86‑89, 16 November 2021). The Court has acknowledged the importance of specific procedural guarantees when it comes to protecting the confidentiality of exchanges between lawyers and their clients and of legal professional privilege (ibid., § 88, and see also Saber v. Norway, no. 459/18, § 51, 17 December 2020).

11.  In the present case, the Court accepts that the interference can be said to have had a general legal basis in domestic law, namely in the Code of Criminal Procedure and the Bar Association Act. What needs to be examined, however, is whether the domestic law provides the requisite procedural guarantees for the protection of privileged data.

12.  The Government referred to the procedural safeguards in place for searches and seizures in general and in the context of a search of a lawyers' offices. Under domestic law, a search may be carried out if there is a reasonable suspicion that a particular object might be found on the premises. The search warrant must generally specify the object being searched for, the location of and the reasons for the search. In the event that a search is carried out at lawyers' offices, it must be authorised by a court order and must be conducted in the presence of a member of the Bar Association. The confidentiality of documents must be respected.

13.  Despite these safeguards, the Court's essential concern is the lack of a practical framework for the protection of legal professional privilege in cases such as the present one. A member of the Bar Association was indeed present during the seizure of the applicant's mobile phone and the examination of its exterior (see paragraph 3 above). However, the actual examination, when the entire content of the phone was copied and transferred to DVD (see paragraph 3 above), was not carried out at the site of the search. Neither the applicant nor the representative of the Bar Association were present during that examination, and the law does not envisage such a possibility (see Särgava, cited above, § 106). The Court therefore finds that the practical relevance as a safeguard of the presence of a member of the Bar Association during the search has no real effect.

14.  Furthermore, as to the sifting and separating of privileged data, the Court observes that the domestic law does not seem to contain any specific procedure or safeguards to address the examination of electronic data carriers and prevent communication covered by legal professional privilege from being compromised. Neither the search warrant issued by the investigating judge, the Appeals Panel's decision (see paragraph 2 above), nor the prosecutor's order for the mobile phone to be examined (see paragraph 3 above) made provision for safeguarding any potentially privileged material protected by professional secrecy. Even allowing for the fact that, as argued by the Government, at the time the search order was issued the investigating judge had not known that the applicant was a lawyer, that must have been evident at least from the moment the applicant lodged an appeal with the Appeals Panel. Other than noting that the investigators would access only the data relevant to the investigation, the Appeals Panel did not provide any other, more specific, guarantees concerning potentially privileged material.

15.  The Government argued that it had been necessary to have access to the entire content of the applicant's mobile phone because the prosecutor had then been able to order a more targeted expert analysis on the basis of narrower search parameters (the co-accused's phone numbers). The Court has no reason to doubt in the present case that the sifting of data by the investigators was carried out conscientiously and that the data accessed were treated as an official secret. However, it cannot but note that the obligation to carry out a targeted search did not seem to derive from domestic legislation. Even if it could be accepted that the prosecutor's oral request (see paragraph 4 above) contained parameters specific enough to enable a more targeted search, as argued by the Government, that search was carried out without any judicial supervision (for judicial review of the material seized from a lawyer's office, see Sérvulo & Associados - Sociedade de Advogados, RL and Others v. Portugal, no. 27013/10, §§ 99-112 and 119, 3 September 2015). Furthermore, despite the sifting done by the investigators, the entire copied content of the applicant's mobile phone was submitted as evidence at trial and it was only upon his objection that the court decided to limit it to the content relevant to the criminal proceedings (see paragraph 6 above).

16.  In view of the above, the Court concludes that the domestic legislation lacked the appropriate procedural safeguards to protect data covered by legal professional privilege. That notwithstanding, the Court has no basis on which to decide whether or not lawyer-client confidentiality was actually compromised in the case at hand. In the Court's view, however, the lack of procedural guarantees relating specifically to the protection of legal professional privilege already fell short of the requirements flowing from the criterion that any interference must be in accordance with the law within the meaning of Article 8 § 2 of the Convention (see Saber, cited above, § 57). In the light of that conclusion, it is not necessary for the Court to review compliance with the other requirements under that provision.

17.  There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage and EUR 2,392.85 in respect of costs and expenses incurred before the Constitutional Court and the Court.

19.  The Government contested those claims.

20.  The Court, in view of the circumstances of the case and the nature of the violation found, considers that it is not necessary to award any just satisfaction in respect of non-pecuniary damage.

21.  Furthermore, regard being had to the documents in its possession and the tariff fixed by the local bar associations, the Court considers it appropriate to award EUR 1,970 covering costs under all heads, plus any tax that may be chargeable to the applicant.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 8 of the Convention;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, EUR 1,970 (one thousand nine hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant's claim for just satisfaction.

Done in English, and notified in writing on 5 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

          Simeon Petrovski                                             Armen Harutyunyan
          Deputy Registrar                                                      President