| Applicant name | NEZIRIĆ |
| Applicant type | natural person (professional privacy) |
| Number of applicants | 1 |
| Country | BOSNIA AND HERZEGOVINA |
| Application no. | 4088/21 |
| Date | 05/11/2024 |
| Judges | Armen Harutyunyan, President, Faris Vehabović Anja Seibert-Foh |
| Institution | Court |
| Type | Judgment |
| Outcome Art. 8 | violation |
| Reason | no legal basis |
| Type of privacy | informational privacy |
| Keywords | quality of law |
| Facts of the case | 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. |
| Analysis | 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. 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. However, the actual examination, when the entire content of the phone was copied and transferred to DVD, 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. 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. 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, nor the prosecutor’s order for the mobile phone to be examined 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. |
| Other Article violation? | – |
| Damage awarded | 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; |
| Documents | Judgment |