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EXCLUSION OF ELECTRONIC DOCUMENTS DURING THE SEARCH IN LAWS INFRINGES THE CONVENTION

 In its ruling in the case of Kirdok and Others v. Turkey, the European Court of Human Rights unanimously held that there had been a violation of Article 8 (right to respect for privacy and family life). In this case, the applicants, who are lawyers, complained about the seizure of their electronic data by the judicial authorities for the purpose of prosecuting another lawyer.

 The court found, in particular, that the removal of the applicants’ electronic data, which had been protected by the client’s lawyer’s professional secrecy, and the refusal to return or destroy them did not meet an urgent social need and were not necessary in a democratic society. The Court also noted the lack of sufficient procedural safeguards in the law, which are interpreted and applied by the judicial authorities.

 The applicants are lawyers. In 2011, the Istanbul prosecutor’s office launched an investigation to identify and disclose secret communication channels operating between Abdullah Ocalan and his former organization. In this context, a Istanbul court judge issued a ruling concerning the activities of a lawyer arrested the following day at his home. . The police searched the office, which he occupied with the applicants. They made copies of all the data stored on the hard drive of a computer shared by all the lawyers, as well as a USB flash drive owned by Ms. Hanbal. A representative of the Istanbul Bar Association and the applicant were present during the search.

 Data seized by police were placed in a sealed package. Subsequently, the applicants challenged the decision given by the jury as representatives on their own behalf. In particular, they requested the return or destruction of their digital data, claiming that the data was not owned by the client, that it was protected by a lawyer’s secret, and that it had been removed without any appropriate order. The prosecutor’s office objected that, since the data had not yet been decrypted, it was impossible to establish their exact owners. The jury rejected the applicants’ complaint on the ground that the impugned order had been issued in accordance with the law and due process.

 In its decision, the ECtHR stated that the applicants, who were not the subject of the criminal prosecution, claimed in the judicial authorities that the electronic data had been removed from them and had been protected by professional secrecy against their client lawyer. He also noted that in his search warrant, the jury broadly indicated the scope of the premises search, stating that the purpose of the operation was to “gather evidence and seize items”, potentially proving that the suspect (US) was involved in the activity terrorist organization. The order did not specify what specific items or documents were to be found at the addresses provided, including the premises of the applicants’ law firm, or what the evidence was related to the criminal investigation.

 Thus, under the order, the authorities responsible for the investigation could examine all the digital data stored in the applicants’ offices without worrying that they were searching the premises of a law firm that could store documents for other clients.

 In addition, the broad scope of the court order was reflected in how it was enforced. Although a representative of the Istanbul Bar Association and the applicant were present during the search and the seized data were sealed in a sealed package, no additional special measures were taken to protect them from interference with professional secrecy. Indeed, there was no mechanism in place to filter electronic documents or data subject to professional secrecy, or any explicit prohibition on the seizure of data subject to such confidentiality. On the contrary, all data on the hard disk of the computer and the flash drive, shared by all lawyers working indoors, was deleted.

 After the applicants requested the return of electronic documents, relying on lawyer’s secrecy between the lawyers and their clients, the judicial authorities were required by law to promptly evaluate the deleted data and return the data protected by such secrecy, or destroy them, depending on circumstances.

 However, national law and practice were unclear as to the consequences of any failure by the judicial authorities to comply with this obligation. The jury finally refused to return or destroy the seized copies of the data based on arguments that merely referred to the lawfulness of the searches conducted by law firms and did not respond to a specific allegation of confidentiality of information between lawyers and their clients. It appears that the jury implicitly accepted the reasons put forward by the prosecutor’s office to justify their refusal to return the seized data because the data were not decrypted and therefore could not be ascertained by their exact owners.

The ECtHR concluded that such a ground for refusal was not only clearly provided for by law, but was also incompatible with the essence of professional secrecy, which protects information that emerges between lawyers and their clients. In any event, it could not be concluded that the examination of the applicants’ request by the judicial authorities was consistent with the obligation to ensure a particularly rigorous examination of the measures concerning data covered by professional secrecy.

 There has therefore been a violation of Article 8 of the Convention. In the absence of sufficient procedural safeguards in the relevant legislation, which are interpreted and applied by the judicial authorities in the present case, the Court found that the complaints under Article 13 of the Convention covered the same basis as the complaint under Article 8 of the Convention. The ECtHR has ruled that Turkey must pay each applicant EUR 3,500 in respect of non-pecuniary damage and EUR 3,000 in total in respect of costs and expenses.

Author: Ivan Ishchuk

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