NGOs under European Convention on Human Rights / Tymofeyeva

‘legitimate aim’, the Court noted that the measures ordered in the context of criminal proceedings served the legitimate aim of preventing crime. Concerning 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 Austrian Code of Criminal Procedure were adequately complied with. The Court observed that the Code of Criminal Procedure provided further procedural safeguards for 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”. 728 A number of factors demonstrated that the applicants’ rights to have certain safeguards in the course of a seizure of electronic data were 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”. 729 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. In the aforementioned case of Société Colas Est and Others v. France , 730 the applicants were three French companies, Colas Est, Colas Sud-Ouest and Sacer. The applicant companies alleged a violation of their right to respect for their ‘home’, relying on Article 8 of the Convention. They contested the lawfulness of the searches and seizures carried out by the inspectors without any judicial authorisation. Regarding the ‘legitimate aim’, the Court observed that the purpose of the interference with the applicant companies’ right to respect for their premises was to obtain evidence of unlawful agreements between public-works contractors and served the interests of both the economic well-being of the country and the prevention of crime. As regards the proportionality of the interference, the Court noted that the inspections in issue took place without a judge issuing any prior warrant and without a senior police officer being present. Given that, even supposing that business premises of legal persons enjoy less protection, the Court considered that the impugned operations in the competition field could not

728 Wieser and Bicos Beteiligungen GmbH , cited above, § 36. 729 Ibid ., § 39. 730 Société Colas Est, cited above.

133