| Applicant name | BERSHEDA AND RYBOLOVLEV |
| Applicant type | natural person |
| Number of applicants | 2 |
| Country | Monaco |
| Application no. | 36559/19 36570/19 |
| Date | 06/06/2024 |
| Judges | Mattias Guyomar , President , Charles Ranzoni, Martin Mits, Stephanie Mourou-Vikström, Maria Elosegui, Mykola Gnatovskyy, Stephane Pisani |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | Not necessary (disorder, preventing criminal offences and protecting the rights and freedoms of others) |
| Type of privacy | Informational privacy; professional privacy |
| Keywords | Data lawyer |
| Facts of the case | he applicants complain about the massive, indiscriminate, disproportionate collection, without respect for lawyers’ professional secrecy, of all the data accessible from the applicant’s mobile phone, including those that had previously been deleted, and their exploitation. |
| Analysis | As regards, first, the applicant’s status as a victim, the Court recalls that in order to be able to lodge an application under Article 34 of the Convention, a person must be able to demonstrate that he or she has ” suffered directly the effects ” of the impugned measure. In the present case, the Court notes first of all that the applicant does not dispute the fact that the disputed expert reports did not concern his correspondence and did not transcribe his exchanges with the applicant, whether in the private sphere or in the lawyer-client relationship. Furthermore, it notes that although the investigating judge’s order of 26 April 2017 expressly referred to the applicant with regard to the research entrusted to the expert, it does not appear that any personal data concerning him was discovered, recovered or used. It follows that the application lodged by the applicant is incompatible ratione personae with the provisions of the Convention . As to the other applicant, whether there has been an interference, the ECtHR noes that the chamber of the Court of Appeal considered that it had not been proven that the applicant had agreed to this transfer for the sole purpose of verifying the integrity of the recording in question, which implicitly amounted to considering, against all likelihood, that the applicant had consented to the extraction and recovery of all her data. The Court notes, however, that while the minutesshow that the applicant had indeed indicated that she was “ ready to submit [her mobile phone] to any analyses that the courts might wish ”, this offer was made in response to the comments of T.R.’s lawyer published in the press, according to which the recording had been truncated and therefore necessarily altered. The applicant also subsequently specified that the entire file containing this recording had been transmitted to the FF police commander The Court concludes that the applicant probably intended to prove her good faith as to the authenticity and integrity of the disputed recording, which had been publicly contested by the opposing party’s lawyer, which cannot be confused with the expression of her consent to the analysis of the entire contents of her mobile phone. It is also clear from the same report that the applicant declared herself ” bound by professional secrecy towards the complainants in the case of the fraud against” and that she did not wish to ” make any further comments on this subject”. The Court considers that , under Article 8 of the Convention, the applicant is justified in claiming that she was subjected to interferences with her right to respect for her private life and her right to respect for her correspondence which, because of their intrusive nature and the similarity of their effects, amount to searches and seizures. The Court concludes that she was therefore indeed the subject of interference with the exercise of these rights. The national judicial supervisory authorities did not redefine, in accordance with the terms of the referral, the limits of the expert mission and the scope of the investigation which the investigating judge had extended too broadly. In addition to this insufficiency in limiting the scope of the investigation, there was also the lack of control over the procedural guarantees due to the applicant by virtue of her status as a lawyer and respect for her professional confidentiality. The Court therefore considers that the applicant’s referrals to the Chamber of the Court of Appeal and to the Court of Revision were, in principle, adequate and effective remedies, but did not, in practice, in the circumstances of the case, allow for appropriate redress of the measures ordered, outside the scope of her referral, by the investigating judge. The applicant thus did not benefit from any of the guarantees required by respect for the professional secrecy attached to her status as a lawyer in the proceedings by which the examination of her mobile phone was ordered and implemented. In conclusion, the Court considers that the interference with the applicant’s exercise of her right to respect for her correspondence and her private life was not proportionate to the legitimate aims pursued and that, therefore, it was not ” necessary in a democratic society “. |
| Other Article violation? | – |
| Damage awarded | . In view of the applicant’s declaration, the Court considers that there is no need to award her any sum under Article 41 of the Convention. |
| Documents | Judgment |