CYIL 2014

299

DO LEGAL PERSONS HAVE THE RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE?

complained of the search and seizure of electronic data. The Court employed its

proportionality test in the present case and came to a conclusion that Article 8 was

breached. Let us have a look at the analysis made by the Court.

It was clear that the seizure of electronic data constituted an interference with

the applicants’ rights. Answering the question whether the interference could be

regarded as “in accordance with the law”, the Court observed that, although the

Austrian Code of Criminal Procedure did not contain specific provisions for the

search and seizure of electronic data, it however contained detailed provisions for

the seizure of objects and specific rules for the seizure of documents. An analysis

of the Austrian practice showed that, according to the domestic courts’ case-law,

these provisions also applied to the search and seizure of electronic data. As to the

“legitimate aim”, the Court noticed that the search and seizure ordered in the context

of criminal proceedings served a legitimate aim of the prevention of crime.

Regarding the “necessity in a democratic society”, the Court assessed whether the

measures were proportionate to the legitimate aim pursued and whether the procedural

safeguards provided for by the Code of Criminal Procedure were adequately complied

with. It was observed that the Austrian Code of Criminal Procedure provided further

procedural safeguards as regards the seizure of documents and electronic data: “(a) the

occupant of the premises being searched shall be present; (b) a report is to be drawn

up at the end of the search and items seized are to be listed; (c) if the owner objects

to the seizure of documents or data carriers they are to be sealed and put before the

judge for a decision as to whether or not they are to be used for the investigation; and

(d) in addition, as far as the search of a lawyer’s office is concerned, the presence of a

representative of the Bar Association is required”.

As regards the safeguards in the course of seizure of the electronic data, a number

of factors have shown that the exercise of the applicants’ rights in this respect was

restricted: “Firstly, the member of the Bar Association, though temporarily present

during the search of the computer facilities, was mainly busy supervising the seizure

of documents and could therefore not properly exercise his supervisory function as

regards the electronic data. Secondly, the report setting out which search criteria had

been applied and which files had been copied and seized was not drawn up at the end

of the search but only later the same day. Moreover, the officers apparently left once

they had finished their task without informing the first applicant or the representative

of the Bar Association of the results of the search”.

As a result, the Court ruled that

the police officers’ failure to comply with some of the procedural safeguards designed

to prevent any abuse or arbitrariness and to protect the duty of professional secrecy

was inconsistent with the legitimate aim pursued. Consequently, there had been a

breach of Article 8 of the Convention.

Ibid

, § 36.

Wieser and Bicos Beteiligungen GmbH v. Austria

, no. 74336/01, § 39, ECHR 2007-IV.